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[2004] NSWSC 1265
Supreme Court of NSW
2004-12-23
Campbell J, Caravonica P
Original judgment source is linked above.
CITATION : Kirkpatrick v Kotis [2004] NSWSC 1265 HEARING DATE(S) : 18/11/04 - 22/11/04 JUDGMENT DATE : 23 December 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Contempt charges dismissed
CATCHWORDS : PROCEDURE - contempt, attachment and sequestration - order prohibiting "the Defendant, by himself, his servants and agents" from acting in certain ways - meaning of "agents" in this context - whether person who might have been, on the evidence, a person engaged by an independent contractor of the defendant is the agent of the defendant - tests for deciding whether a person is an "agent" for the purposes of such an order - JUDGMENTS AND ORDERS - consent orders - whether to be construed by reference to surrounding circumstances - PROCEDURE - contempt, attachment and sequestration - degree of clarity required in order before it can be enforced by contempt proceedings - JUDGMENTS AND ORDERS - degree of clarity required in order before it can be enforced by contempt proceedings - WORDS AND PHRASES - "excavate" - WORDS AND PHRASES - "by himself, his servants and agents" - WORDS AND PHRASES - "agent" - INJUNCTIONS - form of order which requires a land owner to take steps to prevent activity of a certain type occurring on his land, even by a person who is not his servant or agent - INJUNCTIONS - contempt committed by person whose activities knowingly frustrate an injunction LEGISLATION CITED : Fair Trading Act 1987 Trade Practices Act 1974 (Cth) Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 Attorney General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926 Attorney-General v Leveller Magazine Ltd [1979] AC 440 Attorney-General v Times Newspapers [1992] 1 AC 191 Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 Australian Securities Commission v Macleod (1993) 40 FCR 155; (1993) 113 ALR 525 Avery v Andrews (1882) 51 LJ Ch 419; 46 LT 279 C C O M Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 Collins v Wayne Iron Works (1910) 227 Pa. 326, 76A 24 Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited (1931) 46 CLR 41 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Davey v Skinner (1961) 61 SR (NSW) 648 Dinch v Dinch [1987] 1 WLR 252 Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 Ellendale Pty Ltd v Graham Matthews Pty Ltd (1986) 11 FCR 347; (1986) 65 ALR 275 Environment Protection Authority v McConnell Dowell Constructors Aust Pty Ltd (2003) 128 LGERA 246 Ernst & Young (a firm) v Butte Mining plc [1996] 2 All ER 623 Forest View Nominees Pty Ltd v Perron Investments Pty Ltd [1999] FCA 405; (1999) 93 FCR 117 HC Buckman and Son Pty Limited v Flanagan (1974) 133 CLR 422 Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15 Hollis v Vabu Pty Limited (2001) 207 CLR 21 Hone v Page [1980] FSR 500 Iberian Trust, Limited v Founders Trust and Investment Company, Limited [1932] 2 KB 87 International Harvester Company of Australia Proprietary Limited v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644 Re Intex Consultants Pty Ltd [1986] 2 Qd R 99 CASES CITED : Lord Wellesley v The Earl of Mornington (1848) 11 Beav 180 (50 ER 785); 83 RR 136 Madeira Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 Marengo v Daily Sketch and Sunday Graphic, Ltd [1948] 1 All ER 406 Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143 Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141 Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 Microsoft Corporation v Marks (1996) 139 ALR 99 N Mills v Caravonica P/L, Ex Parte Mills, Queensland Court of Appeal, 11 December 1992, unreported Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220 Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 O'Connor v Stevenson (1990) 21 FCR 344 Ready Mix Concrete Redwing Limited v Redwing Forest Products Limited (1947) 177 LT 387 Rogers v Wentworth (New South Wales Court of Appeal, 18 April 1988, unreported) S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Scott v Davis (2000) 204 CLR 333 Seaward v Paterson [1897] 1 Ch 545 Shelfer v City of London Electric Light Company [1895] 1 Ch 287 Spokes v Banbury Board of Health (1865) 1 Eq 42 Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 Stewart v Gymboree Pty Ltd [2001] QCA 307; BC200104395 Stoneman v Lyons (1975) 133 CLR 550 Sun Newspapers Pty Ltd v Brisbane TV (Ltd) (1989) 92 ALR 535 Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 69 ALR 534; (1986) 19 FCR 110 Witham v Holloway (1995) 183 CLR 525 World Wide Fund for Nature (Formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc (2003) 56 IPR 653; [2003] EWCA Civ 401 Yorke v Lucas (1985) 158 CLR 661 PARTIES : Benjamin David Kirkpatrick - Plaintiff Michael Kotis - Defendant FILE NUMBER(S) : SC 4369/04 COUNSEL : CJ Bevan - Plaintiff TS Hale SC; S Docker - Defendant SOLICITORS : John Carmody & Co - Plaintiff Bartier Perry - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST
4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS JUDGMENT HIS HONOUR: Nature of the Application 1 This is the hearing of a charge of Contempt of Court. 2 The plaintiff and the defendant own adjoining blocks of land. The defendant is in the preliminary stages of constructing a new dwelling on his land. 3 Built hard against the boundary between the two lots, and on the plaintiff's land, is a freestanding building known as a cabana. The defendant had, prior to 12 August 2004, caused some excavation work to be carried out on his land, which had lowered the level of the land. In particular, excavation had occurred at the boundary, where the cabana was located. This excavation had got to a level which was below the level of the foundations on which the cabana was built. 4 The plaintiff began proceedings against the defendant on 5 August 2004, alleging that the defendant's building work was in various ways wrongful. On 12 August 2004 Young CJ in Eq made an order in the following terms. "6. The defendant, by himself, his servants and agents, be and is hereby restrained, until Friday 27 August 2004, from using any large piece of earthmoving plant, bulldozer, pneumatic drill, or rock crushing plant or excavator, other than small hand-operated electric jack hammers and hand-operated rock-crushing manual tools used by individual workmen, in order to excavate sandstone or other rock and earth from the defendant's land for any purpose whatsoever. 7. The defendant, by himself, his servant and agents, be and is hereby restrained, until Friday 27 August 2004, from undertaking any work at all on the excavation of the defendant's land adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the plaintiff's land, by any excavation means whatsoever, until such time as the defendant has caused the footing for the southern wall of the brick cabana constructed on the plaintiff's land which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the expert report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, or in any such further specification of such unpinning work made by Mr McMillan in writing as is communicated to the defendant's solicitors within 7 days of the date of this order." 5 On 27 August 2004, when sitting as Duty Judge, I made orders by consent (though without admission on the part of the defendant) in the following terms: "THE COURT ORDERS THAT: The Defendant, by himself, his servants and agents, be and is hereby restrained until further order of the Court from 1. using any large piece of earthmoving plant, bulldozer, pneumatic drill, or rock crushing plant or excavator, other than small hand-operated electric jack hammers and hand-operated rock-crushing manual tools used by individual workmen, in order to excavate sandstone or other rock and earth from the Defendant's land for any purpose whatsoever, except as provided in Orders 2 and 3 below. 2. undertaking any work at all on the excavation of the Defendant's land adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the Plaintiff's land, by any excavation means, whatsoever, until such time as the Defendant has: (a) caused the footing for the southern wall of the brick cabana constructed on the Plaintiff's land which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the experts report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, the supplementary expert report of Mr D R McMillan, structural engineer dated 17 August 2004, which is annexed to his affidavit sworn 19 August 2004 and the structural engineering drawing of Mr D R McMillan described as "Carno MBK Preliminary Drawings 605071-D-101A, 102A and 103-A' which comprise Appendix A to that supplementary report of Mr McMillan; (b) served on the Plaintiff and Mr D R McMillan a certificate by a qualified structural engineer certifying that the underpinning work undertaken on the footing for the southern wall of the brick cabana on the Plaintiff's land complies in all aspects with the terms of paragraph 2(a) above. 3. undertaking any work at all on the excavation of the Defendant's land adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the Plaintiff's land, except in accordance with the following manner, namely: (a) by the use of a 4.5 tonne mini-excavator with a model 521 Indeco hammer ("model 521") but not nearer than 4 metres to the common boundary between the Plaintiff's land and the Defendant's land, subject to paragraph 3(c) below (b) by the use of hand-held jackhammers, rotary grinders and rock saws within 4 metres of the common boundary between the Plaintiff's land and the Defendant's land (c) by the use of a model 521 mini-excavator at all unless there is at all times a vibration monitor ("the monitor") installed and operating at the foundation level of the cabana on the Plaintiff's land fitted with an alarm mechanism, such as a horn and a flashing light, which is activated if vibrations being emitted by the model 521 mini-excavator are recorded by the monitor at or in excess of 5mm/s. (d) by the use of a model 521 mini-excavator at all once vibration levels of 5mm/s have been recorded by the monitor, until such times as the monitor has been reset, but on the basis that the use of the model 521 mini-excavator will cease on each occasion that the monitor is being activated. … 5. Each party have liberty to apply on 7 days notice, including liberty to apply to alter the terms of any of the interlocutory injunctions made by the court and to apply for such additional injunctions as [they] may be so advised to apply for. THE COURT NOTES THAT: The Plaintiff consents to the Defendant, by himself, his servants and agents, having access to the Plaintiff's land for the sole purpose of installing, maintaining, servicing, calibrating, setting and resetting the monitor referred to in order 3 above." 6 A copy of that order, endorsed with the notation, "If you disobey paragraph 1-3 of this Order, you will be liable to sequestration of property and to imprisonment" was personally served upon the defendant on 2 September 2004. 7 The charge now before the Court is in the following terms: "3. On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works on the Defendant's land (within the meaning of the Court's orders) adjoining, or in the immediate vicinity of, the cabana constructed on the Plaintiff's land (within the meaning of the Court's orders), by any excavation means, without having first: (a) Caused the footing for the southern wall of the brick cabana constructed on the plaintiff's land, which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the expert report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, the supplementary expert report of Mr D R McMillan, structural engineer, dated 17 August 2004 which is annexed to his affidavit sworn 19 August 2004 and the structural engineering drawing of Mr D R McMillan described as 'Cardno MBK Preliminary Drawings 605071-D-101A, 102A and 103A' which comprise Appendix A to that supplementary report of Mr McMillan; (b) Served on the plaintiff and Mr D R McMillan a certificate by a qualified structural engineer certifying that the underpinning work undertaken on the footing for the southern wall of the brick cabana on the plaintiff's land complies in all respects with the terms of par (a) above. PARTICULARS (i) Paragraphs 1 and 2 of the Court's orders; (ii) See the report of Mr DR McMillan, structural engineer, dated 9 September 2004 which is annexure 'A' to the affidavit of DR McMillan sworn 9 September 2004 (which accompanies this statement of charge), pages 3-4, answer to Question 4, which particularises the failure to comply with paragraphs 1 and 2 of the Court's orders; (iii) No certificate which complies with par 3(b) above was served on the plaintiff before such excavation works were undertaken. 4. On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works on the Defendant's land (within the meaning of the Court's orders) adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the Plaintiff's land (within the meaning of the Court's orders), otherwise than in accordance with the following manner, namely: (a) By the use of a 4.5 tonne mini-excavator with a model 521 Indeco hammer ("model 521") but not nearer than 4 metres to the common boundary between the plaintiff's land and the Defendant's land, subject to par 3.3 below; (b) By the use of hand-held jackhammers, rotary grinders and rock saws within 4 metres of the common boundary between the Plaintiff's land and the defendant's land; (c) By the use of a model 521 mini-excavator at all unless there is at all times a vibration monitor ('the monitor') installed and operating at the foundation level of the cabana on the Plaintiff's land fitted with an alarm mechanism, such as a horn and a flashing light, which is activated if vibrations being emitted by the model 521 mini-excavator are recorded by the monitor at or in excess of 5 mm/s; (d) By the use of a model 521 excavator at all once vibration levels of 5 mm/s have been recorded by the monitor, until such time as the monitor has been reset, but on the basis that the use of the model 521 mini-excavator will cease on each occasion that the monitor is again activated. PARTICULARS (i) Paragraphs 1 and 3 of the Court's orders. (ii) No monitor called for under the above order has ever been installed or used. (iii) A mini-excavator with a hammer attachment has been used to undertake excavation works nearer than 4 metres to the common boundary between the Plaintiff's land and the Defendant's land. (iv) No hand-held jackhammers, rotary grinders and rock saws have been used to excavate the Defendant's land within 4 metres of the common boundary between the Plaintiff's land and the Defendant's land. 5. The conduct charged in paragraphs 3 and 4 above constitutes contempt of paragraphs 1, 2 and 3 of the Court's orders by you." Factual findings 8 In this judgment, any facts are found beyond reasonable doubt unless I say otherwise. 9 The plaintiff's land is known as 14A Ashley Street, Tamarama. The plaintiff lives there. The defendant's land is known as 10 Cross St Bronte. At the rear of the defendant's land is a parcel of land, also owned by the defendant, in the shape of a right-angled triangle, known as 10A Cross St. The right angle of that right-angled triangle has one of its sides running in a north-south direction, the other in an east-west direction. It is the right-angled triangle of land which was in the process of being excavated before Young CJ in Eq made his orders on 12 August 2004. The hypotenuse of that right-angled triangle is the common boundary between the plaintiffs land and the defendants land. The cabana constructed on the plaintiff's land abuts the westernmost part of the hypotenuse of the right-angled triangle. Thus, the southernmost wall of the cabana adjoins the excavation. 10 By 12 August 2004 the excavation had proceeded to a stage where the level of the defendant's land had been lowered below the level of surrounding lots of land by about five metres. A ramp, made of earth or rock-like material led in a westerly direction from the floor of the lowered section of the land, to adjacent but higher land within 10 Cross Street. The ramp emerged from the excavated area at the southern end of the western wall of the excavated area. 11 The excavation was of an area that extended right up to the boundary between the plaintiff's land and the defendant's land. It had reached a level that exposed a wall of concrete blocks which were part of the cabana, a concrete footing on which that wall of concrete blocks was constructed, and the face of the rock and other earth-like material which underlay the footing. 12 Because the excavation was in material which was to a very large extent sandstone, it was possible for the excavation to be made with edges which were, for all practical purposes, vertical. The excavation which had been made at the boundary where the cabana was located, had an edge which was substantially vertical. As well, the part of the western wall of the excavation which was not covered by the ramp was substantially vertical. 13 While a large part of the footing of the southernmost wall of the cabana was founded on solid sandstone, one portion of it was not. In roughly the centre of the length of that wall, some sandy material underlay the footing. 14 Mr Douglas McMillan is an engineer, who works for an engineering firm known as Cardno MBK, which was engaged by the plaintiff. He had observed that sandy material, and reported on what should be done about it, in a report made available to the solicitors for the defendant on or prior to 12 August 2004. 15 Paragraph 5.3 of the expert report on Mr McMillan annexed to his affidavit sworn 4 August 2004, referred to in the orders of Young CJ in Eq of 12 August 2004, and also in the consent orders made on 27 August 2004, is in the following terms: "Before removing the adjacent materials that prior to excavation had provided lateral restraint to the sandy materials under the central portion of the footing on the south wall of the cabana, the portion of the footing not bearing on rock should have been underpinned to below the proposed excavation level. Excavation without underpinning in such circumstances radically weakens the support afforded to the footing and much increases the likelihood of settlements and associated distress. Underpinning of the affected portion of the footing is required to restore the level of support previously enjoyed and to prevent future movements and possible distress." 16 By 16 August 2004, Mr McMillan had noticed that there was a second part of the footing of the southernmost wall of the cabana which was not founded on solid sandstone. It lay within about 0.6 metres of the westernmost corner of the cabana. There, for a length of approximately 0.6 metres, was the trench for a sewer line which lay below the level which the excavation had reached. That trench had been filled in with soil. 17 On 16 August 2004, there was a meeting onsite between Mr McMillan and a Mr Crino, an engineer advising the defendant. By that time the sandy material which underlay part of the centre of the wall had been removed and replaced with a kind of underpinning, made of brickwork. Neither Mr Crino nor Mr McMillan was satisfied with that work. Nothing had been done, by 16 August, concerning the soil in the sewer pipe trench. After the inspection, Mr McMillan prepared a supplementary report dated 17 August 2004, in which he concluded: "As the thickness of the underpinning was indeterminate, as no subsoil water drainage had been provided, and as the packing between the top of the underpinning and the soffit of the footing over was inadequate, Mr Crino and I agreed that the existing brickwork should be demolished and replaced with the underpinning as detailed on our Drawings 605071-D-101, 102 and 103, attached as Appendix A. Shown on these drawings is underpinning where the natural rock occurred below the soffit of the wall footing and in the sewer trench location. The latter is not intended to provide vertical support to the footing, but to retain the soil fill within the trench on the No. 14A Ashley Street side of the common boundary." 18 There were three drawings annexed to that report. Each of them bore the name and logo of Cardno MBK. Two of them (identified by alphanumeric codes 605071-D-101A ("101A") and 605071-D-102A, ("102A")) were plans which identified the site and certain features of it, one at a scale of 1:500, the other at a scale of 1:200. The drawing at the scale of 1:200, with the suffix 102A, identified the location of the sewer pipe trench, and indicated the length of the wall of the cabana where the sewer pipe trench crossed the boundary by the words "approx. ext. of underpinning". I will refer to that location as "the western underpinning site". Drawing 102A also identified the length of the wall in the centre of the cabana wall which caused Mr McMillan concern, and also identified it by the words "approx. ext. of underpinning". I will refer to that location as "the eastern underpinning site". 19 The third drawing (identified by the code 605071-D-103A ("103A")) was of a section of the underpinning intended to be constructed, showing it bearing upon rock, and showing the materials of which it was to be constructed so as to underpin the soffit of the foundation. It was a drawing which was not appropriate for the underpinning of the foundation at the sewer trench (as the soil-filled trench continued down below the level of the excavation, and there was no rock to bear upon), and indeed Mr McMillan did not intend it to be a drawing of the kind of underpinning he wished there to be for the foundation at the sewer trench. 20 The case proceeded before me on the basis that Mr McMillan's report dated 17 August 2004 had been communicated to the defendant's solicitors within seven days of 12 August 2004, and thus was a "further specification of such underpinning work made by Mr McMillan in writing" within the meaning of the orders made by Young CJ in Eq on 12 August 2004. 21 The plan identified in Mr McMillan's report with the suffix 102A had been prepared on or before 16 August 2004. Mr McMillan had it with him at the site inspection with Mr Crino. He discussed it with Mr Crino at the site inspection, and conducted the site inspection by reference to it. Mr McMillan told Mr Crino that that drawing required the defendant to infill between the rock walls of the trench with brickwork so as to retain the soil in the trench and under the cabana. There was never any suggestion in the discussion between Mr McMillan and Mr Crino about that brickwork providing vertical support to the original concrete footing over the sewer, because the existing footing was obviously capable of spanning the 0.6 metres (approximately) across the trench. In fact the brickwork that they talked about would not provide any vertical support to the footing. 22 Mr McMillan understood that it was a requirement of Sydney Water that any construction over a sewer not impose a load on the sewer. He believed that brickwork constructed over the loose filling above the sewer pipe and grouted hard to the rock walls of both sides of the narrow trench would fulfil that requirement, in that the self-weight of the brickwork would be transferred to the sides of the trench, and, accordingly, would not impose loadings on the sewer pipe. In some fashion, he discussed with Mr Crino the rationale for this design. 23 On 17 August 2004 Mr Crino sent Mr McMillan a facsimile, saying "we are in receipt of your preliminary drawings 605071-D-101, 102, 103 and wish to advise that we concur with the extent of works and your underpinning detail depicted there-on." Even though the drawing numbers which Mr Crino quoted in this facsimile do not have the letter "A" at the end of them, I am satisfied that he was referring to the same three drawings as were annexed to Mr McMillan's report of 17 August 2004. 24 In correspondence dated 20 August 2004 to the defendant, Mr Crino stated: "We wish to advise that Mr Mark Larsson of Direct Building Pty Ltd Underpinning Contractors have been engaged to carry out the works as specified on the abovementioned drawings and commencement of works will be on Wednesday 25 August 2004. Mr Larsson advises that the work will be complete by Friday and periodical site inspections will be called during the process to ensure compliance with the documents prepared by Cardno MBK. I undertake to personally conduct such inspections as and when required and issue relevant certification of the works." 25 By the end of 10 September 2004 nothing had been done about inserting any structural material at all underneath the part of the foundation of the cabana at the western underpinning site. Nor had any certificate relating in any way to the underpinning of the footing for the southern wall of the cabana been served on either the plaintiff or Mr McMillan. 26 Underpinning work has been carried out at the eastern underpinning site. In fact it was not carried out exactly in accordance with Mr McMillan's specification, because the site conditions were found, upon removal of the underpinning which both Mr McMillan and Mr Crino found unsatisfactory, to not be suitable for the implementation of that design. However, Mr McMillan is satisfied with the adequacy of the work which was in fact done at the eastern underpinning site, and the plaintiff makes no complaint about departure from the precise terms of the order dated 27 August 2004 in that respect. 27 The excavation work which had been proceeding on the defendant's land before Young CJ in Eq made orders on 12 August 2004 had been carried out by Zoril Holdings Pty Ltd ("Zoril Holdings"). It is a company which carries out excavation and demolition work, whose directors and shareholders are members of the Kazonis family. Mr Michael Kazonis is one of the directors. 28 When the orders were made on 12 August 2004, excavation work stopped, and the excavator was removed from the site. On 9 September 2004 Mr Michael Kazonis delivered the excavator back to the site. He did not take the excavator down into the previously excavated area, but left it on the unexcavated land. He did no other work at the site that day. 29 The excavator which Mr Kazonis delivered is owned by Zoril Holdings. It travels on caterpillar tracks. It has a cabin for a driver to sit in, and in front of the cabin is a mechanical arm, hinged in several places. Different types of tool can be attached to the end of this arm, and manipulated or operated using it. One such type of tool is a scoop bucket. The scoop bucket cannot be used to break rock. Another is a pneumatic hammer, which can break rock. 30 On 10 September 2004 (which was a Friday) Mr Kazonis went back to the site. He arrived at eight o'clock, or a quarter to eight, or thereabouts. He had an appointment, for around nine o'clock, to meet on the site a geophysicist called Allan Li. Mr Kazonis' understanding was that "the purpose of him coming out was to install a monitor, vibration monitor before I could start working on that site." As well, he understood that Mr Li was to do some testing in connection with the vibration monitor. 31 Mr Kazonis did some work on the site before Mr Li arrived. Using the excavator with the scoop bucket attached to its arm, he cleaned up the site. During the time that the excavation had been halted, some soil had fallen off the ramp onto the floor of the excavation site. Whether for that or some other reason, there were loose rocks and soil on the floor of the excavation site. In particular, there were loose rocks and soil along the base of the part of the western wall of the site which was not covered by the ramp, and extending out from the base of the wall. That collection of loose rocks and soil went all the way along the part of the western wall not occupied by the ramp, right up to where it was adjacent to the cabana. Using the scoop attachment on the excavator, Mr Kazonis collected the loose soil and rock, including from immediately adjacent to the cabana, and put it onto the ramp. The rocks collected included ones Mr Kazonis described, accurately, as "big boulders" - though they were still of a size which could fit in the scoop bucket of the excavator. He did this work for half an hour or forty minutes. What he was seeking to do was to expose the horizontal surface of the rock along the western end of the excavation site, so that it would be ready for him to carry out further rock-crushing activities, and also to clear the site so that the excavator could travel over it easily. Another purpose of Mr Kazonis exposing at least a part of the horizontal surface of the rock was that it would be ready for some tests that he understood Mr Li wanted to perform. In the course of doing that work both the part of the excavator on which the cabin was located, and the scoop bucket at the end of the excavator's arm, were on occasions within 4 metres of the cabana. 32 Next, Mr Kazonis fitted the pneumatic hammer attachment to the excavator arm. He did nothing with the pneumatic hammer until Mr Li arrived. Mr Li arrived after 9 am. Mr Li spent four or five minutes setting the vibration monitor up. Then, Mr Kazonis operated the pneumatic hammer, with its point down in the rock, in four or five different spots, for twenty or thirty seconds in each spot. The places where he operated the pneumatic hammer were ones indicated to him by Mr Li. On those occasions the hammer head was "drilling into the ground, it's banging into the ground …". In the course of that, the hammer broke some of the rock it was drilling into. Mr Kazonis understood that the purpose of him doing this was to enable Mr Li to test the vibration monitor. The entire time that Mr Kazonis was on the site after Mr Li arrived was not more than 15 minutes. Mr Kazonis then left the site, and did not return that day. He was in a hurry to leave, as he wanted to visit his wife and newborn baby in hospital, so did no extra cleaning up after he had operated the hammer. 33 Mr Kazonis had marked a line on the western wall of the excavation site (which he referred to as the back wall), 4 metres from the cabana. Using that line as a guide, when he used the pneumatic hammer he tried to ensure that no rock splitting occurred at a place that was within 4 metres of the cabana. While his method of measuring - by a single line on the back wall, and lining up where he was working with that line by eye - was not a particularly precise one, it is not shown that he applied the point of the pneumatic hammer to the rock within 4 metres of the cabana. 34 There is evidence of the plaintiff, which I accept, to the effect that on 10 September 2004 he saw the excavator, with the hammer attached, operating within one metre from the southernmost wall of the cabana. That evidence does not specifically identify the part or parts of the excavator that were within one metre of the wall. It is an open possibility, on that evidence, that it was part of the body of the excavator that was within one metre of that wall, not the tip of the operating hammer. 35 There is also evidence from the plaintiff's solicitor, which I accept, that he visited the site on 10 September 2004, at 3:00pm, and observed the excavator approximately two metres from the southern wall of the cabana, with the hammer attachment fixed to it. I infer that this is where Mr Kazonis left the excavator at the time he finished work earlier that morning. 36 Mr Li set up the vibration monitor so that it was located on the defendant's land, in the general area of the north-western corner of the right-angled triangle. It was placed on the floor of the area being excavated, a small distance east of the soil-filled trench underneath the cabana foundation. The land on which it was placed was below the bottom of the footing on which the cabana foundation was constructed. The monitor was contained in a box. The top of that box was below the bottom of the footing on which the cabana foundation was constructed. 37 The Notice of Motion alleging contempt was filed on 13 September 2004, and was made returnable that afternoon. At a court hearing in the afternoon of 13 September 2004 legal representatives of the defendant became aware that the plaintiff contended that the monitor was not installed in the position that was required by the orders. The defendant's lawyers took the view that the monitor had been installed in the correct position. Under an agreement that the respective lawyers reached on 20 September 2004, the monitor was moved to a place on the plaintiff's land, at the foundation level of the cabana, immediately in front of the cabana and on the tiled courtyard leading to it. Construing Consent Orders by Reference to Surrounding Circumstances 38 Several questions of construction of the orders arise in this application. I shall deal at the outset with some questions which relate to principles to be applied when construing orders in a contempt application. 39 The defendant submits that the orders in the present case should be looked at as a freestanding piece of prose, unaffected by any surrounding circumstances, for the purpose of deciding their construction. I reject that submission. In Rogers v Wentworth (New South Wales Court of Appeal, 18 April 1988, unreported); BC8802033 Hope JA (with whom Samuels JA agreed) said, at 18 of BC8802033: "'A consent order must.....be construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties' intention:' General Accident Fire and Life Assurance Corporation Limited v Inland Revenue Commissioners [1963] 1 WLR 421 at 430 per Plowman J; affirmed [1963] 1 WLR 1207. In In re Frackelton v McQueen; In re a Solicitor [1910] QSR 1 at 6,7, Chubb J said:- "While this judgment stands, it is final and unimpeachable, and cannot, unless it is ambiguous (if even then), be explained or added to by extraneous evidence", and "the Undertaking ... is embodied in the judgment, and that is all we have to look at, and construe....." The other members of the Court did not express any view on this matter, and indeed, notwithstanding what he had said, Chubb J himself seems to have had some regard to the surrounding circumstances. When the matter was being considered by the High Court: Frackelton v Atthow (1909) 10 CLR 522, Isaacs J considered the construction which Chubb J gave to the undertaking, and without discussing any principle of construction, had regard to the surrounding circumstances and came to a different conclusion. There is nothing in this decision which would lead me to any conclusion other than that the statement of principle by Plowman J is correct, and I accept that it is." 40 Mahoney JA said, at 6-7 of BC8802033: "What is here in question is the construction of an order made by consent and embodying a compromise made between the parties. In England the view has been taken that a consent order must be "construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties' intention", that evidence including "evidence as to the nature of the dispute which was compromised by" the orders: see Halsbury Laws of England , 4th ed, Vol 26, par 527, note I and the case there cited, General Accident Fire & Life Assurance Corporation Limited v IRC [1963] 1 WLR 421 at 430-1; 1207. The dispute in the present case was as to the withdrawal of the second caveat. In Australia, the general principles have been referred to by the High Court in Harvey v Phillips 95 CLR 235. In that case, the court referred to the circumstances in which, and the principles upon which, a consent order embodying a compromise may be set aside: at 243-4. The court did not, in terms, equate the consent order to the compromise on which it was based. It cited with approval a dictum of Lindley LJ in Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 at 280 where his Lordship said that "a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual .... To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not". In that case the court was not directly concerned with the construction of the compromise agreement or the evidence to which reference might be made in the interpretation and construction of it. The observations of Chubb J in In re Frackleton v McQueen; In re a Solicitor [1910] QSR 1 at 6-7, may perhaps suggest that regard may be had only to the terms of the order: the terms of the other judgments and of the judgments of the High Court: 10 CLR 522; do not, I think, deal directly with the question. The view expressed in General Credits Ltd v Ebsworth [1986] 2 QdR 162 by de Jersey J: at 164 et seq; does not suggest any such limitation. See generally Baines v State Bank of New South Wales (1985) 2 NSWLR 729. In interpreting and construing the compromise agreement, the court would not be limited to the mere terms of it. It would be entitled to go to the admissible surrounding circumstances. Those circumstances would include, inter alia, the nature of the dispute and that in respect of which the dispute existed. The court therefore could know that the dispute which the parties compromised was one in relation to, as they believed, the second caveat. Therefore, in my opinion, the compromise, insofar as it referred to "the caveat", would be construed to refer to the second caveat. If it be proper, in construing the compromise agreement, to take into account such evidence, it must be proper to refer to it in interpreting and construing the consent order. It would not be contemplated that the consent order would be construed differently from the compromise which it was to carry into effect." 41 While this decision in Rogers v Wentworth (New South Wales Court of Appeal, 18 April 1988, unreported) is binding upon me and provides authority for using surrounding circumstances to construe a consent order, there are also other cases, which were not relied upon by the judges who decided Rogers v Wentworth, which lead to the same conclusion. In Dinch v Dinch [1987] 1 WLR 252 Lord Oliver of Aylmerton (with whom Lord Keith of Kinkel, Lord Templemen, Lord Griffiths, and Lord Goff of Chieveley agreed) said, at 263: "One has, as it seems to me, simply to look at the order and any admissible material available for its construction and determine what the court intended - or, in the case of the consent order, what the parties intended - to effect by the order." (emphasis added)
His Lordship also said, at 264: "In the instant case, the consent order, on its face and in the light of the issues which were clearly before the court , is not, in my judgement, capable of being construed in any other sense than as finally and conclusively determining the rights of the parties in the property…" (emphasis added). 42 The availability of surrounding circumstances as an aid to construction of a consent order was accepted by Robert Walker J (as his Lordship then was) in Ernst & Young (a firm) v Butte Mining plc [1996] 2 All ER 623, at 634, 636. 43 In S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Priestley and Clarke JJA construed an undertaking to the Court "not to pass off as 'Caltex' petrol any petrol not supplied to the defendant by either of the plaintiffs." There was a dispute as to whether the "passing off" referred to in this undertaking was the tort of passing off (which had damage as an essential element), or whether it was merely representing non-Caltex petrol to be Caltex petrol. At 387 their Honours decided that question by reference to the history of the litigation. They said: "The sole question is: "Has the first appellant broken its promise not to sell as Caltex petrol that of others?" This particular point emphasises the importance of construing the undertaking in the factual matrix which was known to both parties. That matrix includes, but is not limited to, the circumstances already set out." 44 These remarks were made in the context of construing the undertaking for the purpose of deciding whether there had been a breach which amounted to contempt of court. For that purpose, I can see no relevant difference between a breach of an undertaking and a breach of a consent order for an injunction. Though Kirby P would have decided the case on other grounds, at 377 he briefly indicated that he would have taken certain surrounding circumstances into account in construing the undertaking. 45 Thus, authority and principle both favour the view that surrounding circumstances can be used to construe a consent order. The type of surrounding circumstances which can be used are those which can be used to construe a contract, in accordance with the principles laid down by Mason J in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352. Need for Clarity in Orders 46 The authors of Borrie & Lowe, The Law of Contempt, 3rd ed (1996) at 560 say: "No person will be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous." 47 The authors cite, as support for that authority, the following statement of Luxmoore J in Iberian Trust, Limited v Founders Trust and Investment Company, Limited [1932] 2 KB 87 at 95: "If the court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done." 48 In Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 515-6, Owen J referred to that statement from the Iberian Trust case, and to the statement of Jenkins J in Redwing Limited v Redwing Forest Products Limited (1947) 177 LT 387 at 390 that: "I cannot say I think that the undertakings contained in the order were clearly drawn and I cannot say I regard the questions of construction involved in them as entirely easy questions, but in my judgment, a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question."
Owen J, at 516, stated that he agreed with the statements of general principle just quoted from Iberian Trust and Redwing . Windeyer J, at 506, agreed with Owen J in that respect. 49 Barwick CJ, at 492, said: "The appellant submitted that unless the language of the undertaking was unambiguous and certain, it should not be enforced by contempt proceedings: and sought support for the submission in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 and Iberian Trust Ltd v Founders Trust and Investment Co (1932) 2 KB 87. In my opinion, these authorities do not support this conclusion. If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But, even in such a case, the enforcement of the plaintiff's rights must not be left out of account. A party who has bona fide acted on an erroneous view of an order or undertaking may, according to the circumstances, none the less be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and remove ambiguities patent or latent."
Barwick CJ had earlier, at 491, said: "Let it be assumed that the language of the undertaking must in the long run bear the meaning and denote the things which the Court has decided it has or does: yet in proceedings for contempt for breach of the undertaking, it is not enough that the Court is satisfied of that meaning or denotation. I think it ought also to be satisfied that the meaning or denotation is such as the appellant might fairly be expected to have contemplated when giving the undertaking. I do not mean that the Court must be satisfied that the appellant gave the undertaking in that sense. It is sufficient that that sense is one which the appellant ought fairly to have had in view as a sense in which the undertaking could be understood." 50 The procedure which Barwick CJ says should be adopted is for the court to first construe the undertaking, and then see whether the meaning it has arrived at is one which the defendant might fairly be expected to have contemplated when giving the undertaking. The approach of Barwick CJ would entail that an undertaking was enforceable even if there were two meanings each of which a person might fairly have contemplated when giving the undertaking, even if the task of construing it so as to choose between those meanings was a difficult one on which reasonable minds could differ, provided only that the court, after effort, could perform that task. That he adopts this view is shown by the fact that in Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 he did not find that the undertaking there in question was too uncertain to enforce. The approach of Owen and Windeyer JJ is to decide whether the undertaking is ambiguous, and, if it is ambiguous, not enforce it. It led, in Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483, to them deciding that the undertaking in that case was too uncertain to enforce. I do not see how these remarks of Barwick CJ can be interpreted consistently with the views Owen and Windeyer JJ expressed and the conclusion to which Owen and Windeyer JJ came. I therefore take the view of Owen and Windeyer JJ as stating the Australian law. 51 Even so, as with all judicial statements, the views which Luxmoore J, Jenkins J, Owen and Windeyer JJ expressed need to be understood in light of the factual situations which gave rise to them. 52 The order under consideration in Iberian Trust, Limited v Founders Trust and Investment Company, Limited [1932] 2 KB 87, which was the occasion for Luxmoore J's remark, was a particularly sloppy one. Concerning it, Luxmoore J said, at 95: "In terms, the order does not direct the defendant company to do anything - it says: 'that the plaintiff do have a return of the said shares within fourteen days'. Am I to spell out of that an order on the defendant company to do something? I think not."
As well, Luxmoore J did not intend his remark as meaning that no generality in the order was to be permitted. In Iberian Trust , his Honour immediately followed the passage quoted at para [47] above by saying, also at 95: "In saying this I do not intend to say anything contrary to what was stated by Chitty J in Attorney-General v Walthamstow Urban Council 11 Times LR 533, that it was the duty of the defendants to find out the proper means of obeying the order. Of course, there is such a duty on a defendant where the order either prohibits or orders the doing of a specific act. In the case mentioned the order restrained the defendant Council from discharging sewage into a particular brook so as to create a nuisance. That was definite enough in its terms."
At 435, Hayne J made a remark to similar effect. The same can be said about "agency" as a test for the imposition of liability for contempt of court. Tort Law Tests for Agency 93 I intend to start by examining the tests by reference to which one decides whether Mr Kazonis was the agent of the defendant for the purposes of the law of tort. The question of when one person acts as the agent of another has been explored in the case law so far as vicarious liability for torts is concerned. In Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited (1931) 46 CLR 41 the High Court considered liability of an insurance company for slanders uttered by a canvasser who was not an employee. Gavan Duffy CJ and Starke J said, at 46-47: "… we apprehend that one is liable for another's tortious act 'if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority'. It is not necessary that the particular act should have been authorised: it is enough that the agent should have been put in a position to do the class of acts complained of ( Barwick v English Joint Stock Bank (1867) LR 2 Ex 259; Lloyd v Grace Smith & Co (1912) AC, at p 733). And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it. (Cf Limpus v London General Omnibus Co (1862) 1 H & C 526; 158 ER 993.) The class of acts which Ridley was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorised to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by Ridley in the course of his canvass, though contrary to its direction." 94 Dixon J (with whom Rich J agreed) said, at 48-49: " In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity. In this very case the "agent" has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose. This does not mean that he may conclude a contract of insurance which binds the Company. It may be, and probably is, outside his province to go beyond soliciting and obtaining proposals and receiving premiums; but I think that in performing these services for the Company, he does not act independently, but as a representative of the Company, which accordingly must be considered as itself conducting the negotiation in his person. The rule which imposes liability upon a master for the wrongs of his servant committed in the course of his employment is commonly regarded as part of the law of agency: indeed, in our case-law the terms principal and agent are employed more often than not although the matter in hand arises upon the relation of master and servant. But there is, I believe, no case which distinctly decides that a principal is liable generally for wrongful acts which he did not directly authorize, committed in the course of carrying out his agency by an agent who is not the principal's servant or partner, except, perhaps, in some special relations, such as solicitor and client, and then within limitations ." (emphasis added)
The second and third sentences of this quotation have recently been quoted with approval by Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Limited (2001) 207 CLR 21 at 39. 95 In HC Buckman and Son Pty Limited v Flanagan (1974) 133 CLR 422 the High Court construed a regulation which imposed obligations on "any person who directly or by his servants or agents carries out any building work". It was alleged that that regulation had been breached, in consequence of which the tort of breach of statutory duty had been committed. Barwick CJ (with whom Stephen J agreed), at 429, approved the statement in Davey v Skinner (1961) 61 SR (NSW) 648 at 653 that: "The use of the familiar phrase "servants or agents", from the subject matter of the regulations, is intended to embrace those employed under a contract for services that is, not merely servants properly so called, but also the agents, whom, though not strictly servants, the person carrying out building work employs to do for him what he has engaged to do."
Barwick CJ then went on to say: "that is to say, persons whose acts are in law the acts of a principal. But this description does not include independent contractors." 96 In Stoneman v Lyons (1975) 133 CLR 550 the High Court dealt with a situation where a land owner engaged a builder to perform work, the builder performed that work negligently, and in consequence a structure on a neighbour's land was damaged. The builder's workmen excavated into the neighbour's land, thus committing trespass. The terms of the building contract required the builder to notify an architect before excavation occurred, and the builder had ignored that requirement. The neighbour sued the land owner, and lost. Stephen J said, at 562: "… had the builder's workmen been the employees of the [land owner], instead of being employed by his independent contractor, the [land owner] would not in these circumstances have been liable for their trespass upon the respondent's land, for he had neither ordered the trespass nor any act comprising it nor any act leading by a physical necessity to the trespass ( Sharrod v London & North Western Railway Co (1849) 4 Exch 580, at pp 585-586, per Parke B, Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, at p 244, per Lord Tucker; the workmen, when they trespassed were not acting as the appellant's instrument ( Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36, at p 65 per Kitto J. The present case, in which the workmen were not the employees of the appellant, is a fortiori." 97 Mason J (with whom Barwick CJ and Gibbs J agreed) said, at 573: "… the contract did not authorise and direct the builder to do what he in fact did … In this circumstance the trespass by the builder cannot be attributed to the [land owner]. For the purposes of trespass the act of an independent contractor does not become the direct act of the defendant unless he orders to be done the act which constitutes the trespass, some act which comprises that act or some act which leads by physical necessity to the trespass: Sharrod v London and North Western Railway Co (1849) 4 Exch 580, at p 585; Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36, at pp 64-65" 98 In Scott v Davis (2000) 204 CLR 333 the High Court held that there was no vicarious liability in tort on the owner of an aeroplane who requested a pilot to use the plane to give a boy a joyride, in the course of which the pilot, through negligence, caused the plane to crash, injuring the boy. A critical reason why there was no vicarious liability was that at the time of the pilot's negligent act the owner of the plane was not in a position to assert a power of control over the way in which the pilot was flying the aeroplane (per Gleeson CJ at 341-2, Hayne J at 440, Callinan J at 459-460). The court rejected the proposition that it was a sufficient reason to impose liability that the pilot was using the aeroplane at the owner's request and for the owner's purposes. Gleeson CJ did so at 342, for reasons which included that: "it is impossible to reconcile with the general rule that a person is not vicariously liable for the negligence of an independent contractor. An independent contractor may be using an article at another's request and for the other's purposes, but the other is not ordinarily responsible for the contractor's negligence."
A similar conclusion was reached by Hayne J at 440, and is implicit in the list of conditions for imposing vicarious liability in tort which Callinan J set out at 459. 99 To similar effect is Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited (1931) 46 CLR 41 at 48 (the second sentence of the passage quoted at para [94] above), and also where, at 50, Dixon J spoke of: "… the many senses in which the word "agent" is employed. "No word is more commonly and constantly abused than the word 'agent.' A person may be spoken of as an 'agent' and no doubt in the popular sense of the word may properly be said to be an 'agent,' although when it is attempted to suggest that he is an 'agent' under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading" (per Lord Herschell in Kennedy v De Trafford (1897) AC 180, at p. 188). Unfortunately, too, the expressions "for," "on behalf of," "for the benefit of" and even "authorize" are often used in relation to services which, although done for the advantage of a person who requests them, involve no representation. " (emphasis added) 100 In Hollis v Vabu Pty Limited (2001) 207 CLR 21, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ recognised, at 36, the general rule that an employer is not vicariously liable for the tortious acts of an independent contractor and, at 39, adopted a statement of McHugh J in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 at 366 that the "rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer". Whether Mr Kazonis is an Agent of the Defendant 101 In the present case, the evidence establishes very little about the relationship between Mr Kazonis and the defendant. It is established that Mr Kazonis was doing the work by reason of his role in Zoril Holdings. However, the connection between Zoril Holdings and the defendant is to a very large extent unexplained. While it could be inferred that Mr Kazonis was not a trespasser on the site, and that Zoril Holdings had been engaged to do work on the site, one does not know if it was doing that work under a contract with the defendant, or under a contract with a builder engaged by the defendant, or on some other basis. The terms of the authority of Zoril Holdings under whatever contract it might have been engaged (assuming there was one) are not established. It is not established that Zoril Holdings had any authority to engage others (such as Mr Kazonis) on the defendant's behalf. It is not shown that in any other way the defendant engaged Mr Kazonis to do the work in question. Whether it was the defendant, or someone else, who requested that Mr Kazonis go to the site on 10 September 2004 has not been established. There is no evidence of the defendant holding out to the plaintiff (or indeed to anyone) that either Mr Kazonis, or Zoril Holdings, had authority to act on his behalf in any way. For these reasons, it is not shown that Mr Kazonis had any authority to enter legal relations of a contractual kind on behalf of the defendant. 102 If one applies the various tests which have been used to decide whether vicarious liability in tort exists, it is not shown that the defendant ordered the doing of any of the acts which Mr Kazonis performed on 10 September 2004, nor is it shown that he ordered any act which led by physical necessity to any of the acts which Mr Kazonis performed that day. It is not shown that Mr Kazonis was the servant of the defendant, or his partner, or in any other type of relationship with the defendant which as a matter of law has agency as one of its incidents. Whether the defendant knew that Mr Kazonis (or anyone proposing to drive an excavator) was at the site at all, or knew that arrangements had been made for him to go to the site, or knew anything about what he was to do there, is not established. Whether the defendant had any capacity to control Mr Kazonis' activities at the site has not been established. It is an open possibility, on the evidence, that Zoril Holdings was some sort of an independent contractor - and usually a person who engages an independent contractor is not liable for the torts of that independent contractor. Even if it were to be inferred that Mr Kazonis was doing the work on the site at the request of and for the purposes of the defendant, that would not be enough to make the defendant vicariously liable in tort for his actions. 103 In these circumstances it has not been established that Mr Kazonis was the agent of the defendant, for the purposes of the law of contract, or for the purposes of the law of tort. Of course, there are legal relations other than those which are recognised in the law of tort or contract, which an agent might have power to create on behalf of his principal - e.g. fiduciary obligations of various kinds. But it is hard to see how the reasons why Mr Kazonis is not shown to have the power to create relations of a contractual or a tortious kind between the defendant and third parties will not also result in him not being shown to have the power to create legal relations of any kind between the defendant and third parties. In these circumstances, I see no reason why I should hold that it has been established beyond reasonable doubt that Mr Kazonis was, on 10 September 2004, acting as the agent of the defendant, for the purpose of deciding whether the defendant committed a contempt of court on that day. When it has not been shown that Mr Kazonis had the capacity to create legal relations of any type at all on behalf of the defendant, it is not necessary to answer the questions raised at para [90] above and decide whether it is only the capacity to create some particular type of legal relations which matters, for the purpose of deciding whether a contempt of court has been committed.
104 Counsel for the plaintiff in the present case made a submission that, if Mr Kazonis is not treated as the agent of the defendant, there will be real practical difficulties in the court being able to make effective interlocutory orders to govern a situation like the present, when (in his submission) building work is being done in a way which involves the tort of nuisance being committed against a neighbouring owner, and the neighbouring owner, who is not involved in the building work, does not know what precise relationship might exist between the owner of a building site and people who actually do work on that building site. He submits that the existence of those practical difficulties provides a reason why Mr Kazonis ought be held to be the agent of the defendant for the purposes of deciding whether a contempt has been committed. If that is not done, he submits, the court's power to make orders which actually prevent wrongdoers from continuing with their wrongdoing will be shown to be weak and ineffective. I do not accept that that is so, for three reasons. 105 The first reason is that, even though it might not be possible to require someone charged with contempt to give discovery or answer interrogatories or answer a subpoena to produce documents or a notice to produce, if so doing had a real tendency to increase the risk that the person might be found guilty of the contempt, subpoenas (either to produce documents or to give evidence) issued to other people connected with the circumstances of the alleged contempt might possibly show what the relationship between the defendant and the person who actually did the work was.
106 The second reason is that the drafting of the orders in the present case did not use wording capable of dealing with the practical difficulties concerned. Injunctions can only be granted against people who are parties to a suit at the time the injunction is made (although sometimes that requirement is met by making an order that a particular defendant represent a particular class of defendants): Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143 at 157-162. At the risk of stating the obvious, any order the court makes must be one that identifies what it is that the person to whom it is addressed is to do. Injunctions customarily recognise that the person to whom it is addressed can sometimes act by servants or agents, and therefore address their command to the defendant, but identify what the defendant is forbidden to do, or required to do, in terms of action by "the defendant, by himself, his servants and agents". But if there is a situation - as happens in the building industry, where the engagement of subcontractors is common - where a plaintiff wants to stop activities being carried out not only by the defendant but also by people, such as subcontractors who are not the defendant's servants or agents, the order needs to be drafted to require the defendant to act in a way which can in practice stop the activity which is objected to, and which is within the defendant's power to achieve. 107 For a long time there have been orders directed to the person for whose ultimate benefit an operation is being carried out that that person not permit (or allow, or suffer, or authorise) certain objectionable types of activity to take place in the operation (eg Spokes v Banbury Board of Health (1865) 1 Eq 42 at 43; Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 at 191), sometimes supplemented by a requirement to not cause the objectionable type of activity to take place (eg the order made in Shelfer v City of London Electric Light Company [1895] 1 Ch 287, as reported in Seton's Judgments and Orders, 7th ed (1912) pp 597-8. When the person to whom such an order is directed is the owner of land, and the order is formulated as one that he not permit, suffer or cause certain types of activity to take place on his own land, and as well directs that he, by himself, his servants and agents not carry out those types of activity on the land, a defendant who obeys the order will need to take active steps to make sure that activities of those types are not carried out on the land, even by people who are not his servants or agents.
108 The third reason is that it is well recognised that it can be a contempt of court for someone to whom an injunction is not addressed to interfere knowingly in the operation of that injunction: Lord Wellesley v The Earl of Mornington (1848) 11 Beav 180; 50 ER 785; 83 RR 136; Avery v Andrews (1882) 51 LJ Ch 419; 46 LT 279; Seaward v Paterson [1897] 1 Ch 545; Kerr on Injunctions, 6th ed (1927) pp 671-2, 674-5; Seton's Judgments and Orders, 7th ed (1912) pp 522-3; Attorney-General v Leveller Magazine Ltd [1979] AC 440; Madeira Roggette Pty Ltd (No 2) [1992] 1 Qd R 394; Sun Newspapers Pty Ltd v Brisbane TV (Ltd) (1989) 92 ALR 535; Stewart v Gymboree Pty Ltd [2001] QCA 307; BC200104395. The same principle applies to knowing interference with an undertaking given to the court: Ellendale Pty Ltd v Graham Matthews Pty Ltd (1986) 11 FCR 347; (1986) 65 ALR 275; Attorney-General v Times Newspapers [1992] 1 AC 191 at 219, per Lord Oliver of Aylmerton; C C O M Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524; Re Intex Consultants Pty Ltd [1986] 2 Qd R 99; Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 69 ALR 534; (1986) 19 FCR 110; World Wide Fund for Nature (Formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc [2003] EWCA Civ 401; (2003) 56 IPR 653 at [36] - [41]. Such a person can be guilty of contempt even if they have not been served with a copy of the order (Australian Securities Commission v Macleod (1993) 40 FCR 155; (1993) 113 ALR 525 at 532-533, per Drummond J), though of course service of a copy of the order would establish clearly that the person knew of the order. See also, generally, my paper "Contempt by Frustrating Injunctions", in the speeches section of the NSW Supreme Court website. This principle could sometimes be of assistance in giving a remedy for certain types of activity which were not directly forbidden by the injunction, but which were engaged in for the purpose of frustrating the effectiveness of the injunction. Corporations and Contempt by Agents 109 Special considerations apply in making a corporation liable for contempt of court for actions committed on its behalf. In Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15 the House of Lords held a union liable for contempt of court when its shop stewards persisted in "blacking" certain vehicles, after a court had made orders restraining the continuance of that blacking by the union. This was done in the context of a finding that "there was a general implied authority for the shop stewards to protect their men's wages and jobs by blacking" (at 104), and that that authority had not been revoked by the union. Lord Wilberforce (delivering the judgment of the House) said, at 111, that the effect of the evidence about the position of the shop stewards: "is summarised in the statement made by the general secretary on television … : "We don't call on shop stewards to obey the union - they are the union."" 110 In Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 a company was held liable for contempt when certain of its employees acted in breach of an order of the Restrictive Practices Court, notwithstanding that management had expressly forbidden the employees to engage in the type of conduct they had engaged in. Lord Templeman (with whom Lord Jauncey of Tullichettle, Lord Mustill and Lord Slynn of Hadley agreed) rejected a submission that if directors or other senior management who constituted the "guiding will" of the company had forbidden a particular course of action to be carried out by a company employee, then the company was not acting if an employee disobeyed that instruction. He said, at 465: "An employee who acts for the company within the scope of his employment is the company. Directors may give instructions, top management may exhort, middle management may question and workers may listen attentively. But if a worker makes a defective product or a lower manager accepts or rejects an order, he is the company." 111 Lord Nolan (with whom Lord Jauncey of Tullichettle, Lord Mustill and Lord Slynn of Hadley also agreed) quoted with approval, at 477, a passage from the judgment of Warrington J in Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 at 194: "In my opinion, further, the act need not be done by the person himself. In the case of a corporation it cannot be done by the corporation itself, at any rate in the case of such a corporation as an urban district council. Such a body can only act by its agents or servants; and I think, if the act is in fact done, it is no answer to say that, done, as it must be, by an officer or servant of the council, the council is not liable for it, even though it may have been done by the servant through carelessness, neglect, or even in dereliction of his duty." 112 Lord Nolan, at 480-1, concluded: "… disobedience by the servants of a company, acting in the course of their employment, to an injunction amounted to contempt of court by the employing company unless the conduct of the employees could be described as merely casual or accidental and unintentional … " 113 Before any of these principles could be availed of by the plaintiff in the present case, it would be necessary first to establish that Mr Kazonis was the agent of the defendant. This has simply not been done. The Hone v Page Formulation of When Liability Exists, and its Extension 114 In Hone v Page [1980] FSR 500 Slade J gave a new formulation of the circumstances in which a person bound by an injunction could breach it as a result of conduct by his servants or agents. At 507 he said as follows: "In the absence of authority, I am prepared to assume in favour of the defendant that the form of undertaking does not expose the giver of the undertaking to absolute liability for the acts of his servants or agents. Nevertheless, again in the absence of authority, I think that a man must be deemed to do a relevant act "by his servants or agents," within the meaning of an undertaking given in this form, if (a) the persons who did the acts were his servants or agents, (b) the acts were done in the course of the service or agency, and (c) he either (i) authorised the acts or (ii) could reasonably have foreseen the possibility of such acts and failed to take all reasonable steps to prevent them."
That passage was quoted with approval by the English Court of Appeal in Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926 at 936-7. It was applied by Carnwath LJ in World Wide Fund for Nature (Formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc (2003) 56 IPR 653 at 659. If this principle applies in Australian law, (a matter which I need not decide) it does not assist the plaintiff because it also depends on having first established that the person who acts is a servant or agent of the defendant. 115 On the basis of this principle, Carnwath LJ accepted, in World Wide Fund for Nature (Formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc (2003) 56 IPR 653 at 659, that there is to be implied into the standard form of injunction a requirement on the party enjoined "… to take such steps as are within its power to prevent its independent contractors from performing acts which, if performed by the party enjoined, would be in breach." Even if this extension of the principle applies in Australian law, (a matter I also need not decide) it has not been shown that the defendant has breached it. Forest View and O'Connor v Stevenson 116 The decision of the Full Federal Court (Spender, Cooper and R D Nicholson JJ) in Forest View Nominees Pty Ltd v Perron Investments Pty Ltd [1999] FCA 405; (1999) 93 FCR 117 is one which has considered whether a person is in breach of a court order by reason of the action of someone who is, in some respects, his agent. In that case, confidential documents, produced to the court on subpoena, were released to the parties subject to orders requiring that certain steps be taken to safeguard the confidentiality of the documents. The solicitor for one of the parties inadvertently failed to comply with those safeguards. The company which had produced the documents sought to have not only the solicitor, but also his client, punished for contempt. The client was unaware of the conduct of the solicitor and did not ratify, aid or abet it. R D Nicholson J (with whom Spender J agreed) noted, at 137, "the unclear basis on which the law of agency applies in this field", and, at 139, that the "precise point raised by the appeal does not appear to be presently the subject of binding authority". He held that the charge of contempt against the client failed. His reasons, at 139-40, were closely related to the facts of the case. They were, in substance, that a solicitor is the agent of his or her principal, with authority to undertake those matters which flow from the retainer; however, an omission by a solicitor to comply with a confidentiality order lies outside the scope of his authority, and, being outside his authority, cannot create a liability in the principal. His Honour held that the breach of the order was not without sanction, because the solicitor is an officer of the court, and could be dealt with by the court. That reasoning cannot be directly applied in the present case - it depended on there being a limitation on the authority of someone who was undoubtedly for some purposes an agent, whereas here it is not shown Mr Kazonis was an agent of the defendant for any purpose. As well, the order there in question was not an injunction, directed to "the Defendant, by himself, his servants and agents". Rather, it was not addressed to anyone in particular. It was the type of order recognised in Witham v Holloway (1995) 183 CLR 525 at 533 as "… procedural orders… [n]on-compliance [with which] necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties." The solicitor in Forest View Nominees was bound by the order himself. 117 Spender J gave separate reasons for reaching the conclusion that the client was not liable. He summarised it, at 119, in the proposition that "an innocent principal is not vicariously liable for the contempt committed by the principal's solicitor". After noting that Witham v Holloway (1995) 183 CLR 525 had established that contempt of court was criminal in nature he continued, at 121: "It seems to me that, if all proceedings for contempt have to be seen as criminal in nature, there is no room for the imposition of vicarious liability. At the core of the notion of criminal responsibility is the requirement of mens rea. It may be accepted that it is not necessary to show that the defendant is intentionally contumacious nor that he or it intends to interfere with the administration of justice. Sacks LJ said in Knight v Clifton (at 721): … when an injunction prohibits an act, that prohibition is absolute and is not to be related to intent unless otherwise stated on the face of the order … In the well known passage in Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 Warrington J said (at 194): … if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. In my opinion, an authorisation to a solicitor by the retainer of him to conduct litigation for a client does not mean that the principal is liable, as if for a crime, for conduct by the solicitor that is in contempt of court." 118 His Honour referred to the decision in Yorke v Lucas (1985) 158 CLR 661, in which the High Court held that before a person aided, abetted, counselled or procured a contravention of the Trade Practices Act 1974 (Cth), within the meaning of section 75B of that Act, it had to be shown that he had intentionally aided, abetted, counselled or procured a contravention, and to form the necessary intent he must have knowledge of the essential matters which make up the contravention, whether or not he knows those matters amount to a contravention. Spender J said, at 122: "I have referred to Yorke v Lucas because it seems to me that if, as the High Court teaches in Witham v Holloway , all contempts are essentially criminal in their nature, it would be contrary to established principle that a person could be liable for a contempt even if that person was not a party to that conduct in the sense that that person had neither aided, abetted, counselled nor procured the offence, nor had been knowingly concerned in its commission, nor was a party to, nor had conspired with others to effect the contempt."
And also, at 122: "The conclusion against importing vicarious liability to a principal for the principal's solicitor's contempt derives support from a consideration of the underlying rationale for the exercise of the contempt power referred to by Gibbs CJ, Mason, Wilson and Deane JJ in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd , earlier set out. If every exercise of the contempt power is because of the necessity to uphold and protect the effective administration of justice, that purpose is not advanced where an innocent person is found to be in contempt and ordered to pay costs and to indemnify other parties in respect of costs that they are ordered to pay. On the contrary, such treatment would not uphold and protect the effective administration of justice: it would bring it into disrepute." 119 His Honour found this conclusion to be in keeping with the decision of the House of Lords in Heaton's Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15 and Director-General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456, because in those cases the people who had acted in contravention of the orders had authority from the defendant, or a position in the organisational structure of the defendant, such that their act was the act of the defendant. 120 Spender J also noted, at 124, that: "… there is no case which suggests that acts of an independent contractor engaged by a corporation can, without more, generate criminal liability in the corporation for those acts." 121 To similar effect is the decision of Einfeld J in O'Connor v Stevenson (1990) 21 FCR 344. His Honour said, at 356: "It seems to me clear that without any statutory vicarious liability applicable to contempt of court for breach of an undertaking, an employee's acts do not per se attract the liability of the employer for the offences charged in these proceedings." 122 In Environment Protection Authority v McConnell Dowell Constructors Aust Pty Ltd (2003) 128 LGERA 240 Pearlman J, dealing with a statutory offence the terms of which allowed a person to be guilty through vicarious liability, decided whether vicarious liability existed for the crime by using the same tests as are used to decide vicarious liability for torts. 123 To dispose of the present case, it is not necessary to adopt any large theory about how vicarious liability fits in with contempt of court, or to state in general terms the circumstances, if any, in which a person can be liable for contempt of court by reason of the act of his agent. In Witham v Holloway (1995) 183 CLR 525 at 534 the High Court (Brennan, Deane, Toohey and Gaudron JJ) held that all proceedings for contempt must be seen as criminal in nature, and in consequence need to be proved beyond reasonable doubt. But, their Honours also said, at 534, "However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge." That particular remark was made in the context of discussing the procedure by which charges of contempt were tried, and it is not clear whether their Honours intended it to apply outside the context of procedure. It is not necessary, to reach a decision in this case, to decide whether any limitations on the existence of vicarious liability for crime also apply to contempt of court. Conclusion 124 The basis on which I decide this aspect of the case is that, as a matter of fact, it is not established that Mr Kazonis was acting as the agent of the defendant on 10 September 2004. In that circumstance, all the charges must be dismissed. Orders
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Kirkpatrick
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[2001] QCA 307
(1965) 112 CLR 483
(1993) 40 FCR 155
(1993) 113 ALR 525
(1992) 36 FCR 524
(1982) 149 CLR 337
(1931) 46 CLR 41
(1993) 30 NSWLR 337
(1986) 11 FCR 347
(1986) 65 ALR 275
(2003) 128 LGERA 246
(1999) 93 FCR 117
(1974) 133 CLR 422
(2001) 207 CLR 21
(1958) 100 CLR 644
(1996) 139 ALR 99
(1997) 188 CLR 313
(1990) 21 FCR 344
(1988) 12 NSWLR 358
(2000) 204 CLR 333
(1975) 133 CLR 550
(1989) 92 ALR 535
(1986) 69 ALR 534
(1986) 19 FCR 110
(1995) 183 CLR 525
(2003) 56 IPR 653
(1985) 158 CLR 661
(1909) 10 CLR 522
(1985) 2 NSWLR 729
(1957) 97 CLR 36
(2003) 128 LGERA 240