Lade & Co P/L and Ors v Black [2006] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION: Lade & Co P/L and Ors v Black [2006] QCA 294

PARTIES: LADE & CO PTY LTD ACN 010 109 369 (first plaintiff/first respondent) ROBERT HAROLD LADE and MAUREEN JOYCE LADE (second plaintiff/second respondent) STEPHEN ROBERT LADE and KAMALA LADE (third plaintiff/third respondent) v DONALD JOHN BLACK (defendant/appellant)

FILE NO/S: Appeal No 10336 of 2005 / SC No 463 of 2004

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Townsville

DELIVERED ON: 15 August 2006

DELIVERED AT: Brisbane

HEARING DATE: 31 May 2006

JUDGES: Jerrard and Keane JJA and Jones J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1.Appeal dismissed / 2. The appellant should pay the respondents’ costs to be assessed on the standard basis

CATCHWORDS: PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – BREACH OF UNDERTAKING TO COURT – appellant breached his undertaking to the court to prevent his cattle from trespassing onto the respondents’ land – trial judge did not expressly find that the applicant committed contempt of court by reason of his breach – trial judge found that appellant’s conduct was not contumacious – whether a breach of an undertaking to the court is only a contempt of court if it is accompanied by a contumacious or wilful mental element – was appellant’s failure to prevent straying of cattle not merely casual, accidental or unintentional / PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – IN GENERAL – trial judge fined the appellant under r 930 Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) – whether trial judge has the power to impose a fine for a “civil” contempt – whether meaning of “contempt” in r 930 UCPR should be confined to a narrow class of contempts traditionally described as “criminal” / Penalties and Sentences Act 1992 (Qld), s 49(1) / Uniform Civil Procedure Rules 1999 (Qld), r 930 / Attorney-General at the relation of the Leyton (Essex) Urban District Council v Walthamstow Urban District Council (1895) 11 TLR 533, cited / Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, considered / Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483, considered / Bakir v Doueihi & Ors [2002] QSC 19; SC No 6124 of 2000, 8 February 2002 , considered / City Hall Albury Wodonga Pty Ltd & Ors v Chicago Investments Pty Ltd [2006] QSC 031; SC No 4161 of 2003, 2 March 2006, cited / Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456, considered / Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118; [2000] QCA 108, considered / Fairclough v Manchester Ship Canal Co [1897] WN 7, considered / Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15, cited / Madeira v Roggette Pty Ltd [1990] 2 Qd R 357, considered / Spokes v Banburry Board of Health [1865] 1 LR Eq 42, considered / Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190, considered / Steiner Products Ltd v Willy Steiner Limited [1966] 1 WLR 986, cited / Stewart & Anor v Gymboree Pty Ltd & Anor [2001] QCA 307; Appeal No 8947 of 2000, 3 August 2001, cited / Witham v Holloway (1995) 183 CLR 525, considered / Worthington v Ad-Lib Club Ltd [1965] Ch 236, cited

COUNSEL: J R Baulch SC for the appellant/defendant / G M Egan, with N Ferrett, for the respondents

SOLICITORS: Macrossan & Amiet for the appellant/defendant / CJ Cooper & Associates for the respondents

JERRARD JA: In this appeal I have read the reasons for judgment of Keane JA, and while I agree that the appeal should be dismissed, my reasons differ a little from His Honour’s. That is because I have a different view from his on what is necessary to establish a contempt of court, although I agree it was established in this matter. The issue on which we disagree is whether or not a finding of contempt of an order or undertaking requires proof by the party alleging it that the contemnator has deliberately engaged in conduct which breaches the order or undertaking.

My analysis of the cases leads me to respectful disagreement with Keane JA on these propositions, which I understand he advances:

1.that Mr Black could not avoid the conclusion that his failure to comply with the undertaking was a contempt of court by relying on what Mr Black regarded as reasonable measures to achieve the result. I disagree, if the measures Mr Black took were reasonable;

2.that it was unnecessary for the plaintiffs, to establish contempt, to prove that Mr Black’s breach of his undertaking was wilful, in the sense that that term was used in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd¹ (as meaning a deliberate act or omission breaching an order, and not one which was a casual, accidental, or unintentional breach);

3.that when an undertaking or order has been breached, the circumstances of intention attending the breach are not relevant to whether a contempt has occurred, but are relevant to whether the contempt is punishable by sanctions previously thought to be appropriate only to intentional disobedience of a court order.

Background matters

Before referring to case law, I will describe some further matters of fact, adopting and adding to the facts Keane JA has described. The evidence before the learned trial judge included an affidavit from a Roy Paine, a livestock agent whose working life had been spent in the cattle industry as a station-hand, cattle buyer, or stock and station agent, and who was familiar with the area in which the Black and Lades’ properties were located. Mr Paine’s affidavit gave the opinion that four stockmen on horseback would have taken no longer than one day to complete a proper and efficient muster of the 4000 acre paddock, and that two reasonable stockmen on horseback could achieve a clean muster in two days. He also swore that graziers wanting to stop the movement of cattle on a temporary or short term basis commonly fenced areas off with an electric wire or tape, and that an electric fence of up to four kilometres in length could have been erected within one day for a cost of about $1,000, including labour and material. Those opinions were not challenged in his cross-examination. All that Mr Black said about an electric fence, in his cross-examination, was that he had never used one and did not believe in them. He had mustered the paddock using four wheel drive vehicles, not horses. Mr Black said in evidence that in his opinion mustering on horseback would not have been practicable.

The learned judge concluded on the evidence that the boundary fence between Mr Black’s property and that of the various plaintiffs was not in good order throughout, and was not stock proof in places, particularly where it crossed a creek where at all relevant times cattle were able to access the plaintiffs’ land. The judge was satisfied that Mr Black made some attempt to repair the fence, that the attempt was inadequate to prevent cattle from trespassing, and that once Mr Black knew he had not obtained all of the cattle in the paddock adjacent to the plaintiffs’ lands in his first muster, he ought to have taken urgent steps to fix those parts of the fence which allowed the cattle to trespass.

The evidence showed that in the correspondence passing between the parties’ solicitors, the plaintiffs’ solicitor advised on 25 August 2005 of trespass by at least seven cattle the night before, and Mr Black’s solicitors insisted in a reply that day that Mr Black had removed his cattle from that part of the property, gone to great lengths to ensure that none of his cattle were anywhere near the boundary, and had fixed the only break in the fence line. On 26 August 2005 the plaintiffs’ solicitors advised that seven head trespassing on 25 August 2005 were clearly identified as Mr Black’s, by their earmarks and brands, and on 29 August 2005 the plaintiffs’ solicitor advised of fresh cattle tracks seen on 28 August 2005, following rain. The plaintiffs demanded on that date that Mr Black repair the fence, remove the cattle, and comply with the undertaking. Once again that correspondence identified seven head of cattle, described by the plaintiffs as perhaps left behind when Mr Black may have mustered the adjoining paddocks, and bearing Mr Black’s earmark and brand. The cattle were described in some detail. The reply to that was an ongoing denial that any of Mr Black’s cattle were trespassing. That correspondence, continuing in similar vein on 30 August 2005 and including complaints that day by the plaintiffs of a still broken fence as at that date and fresh damage to cane by cows, shows the level of agitation the plaintiffs experienced about breach of the undertaking, and Mr Black’s unwillingness to agree that it was happening.

The judge concluded that Mr Black did not act contumaciously, and did in fact take substantial but inadequate steps to prevent the cattle trespassing. The judge described being left with the impression that Mr Black may not have been sufficiently imbued with the urgency of the situation and certainly not as concerned about it as the plaintiffs were. The evidence entitled the learned trial judge to conclude that Mr Black had not taken all reasonable steps to comply with his undertaking, because Mr Black had chosen to follow only one course, namely mustering by vehicle, and had simply rejected as wrong complaints about the fence and continued cattle trespass.

The undertaking

I agree with Keane JA that the terms of the undertaking were explicit, namely that Mr Black undertook until judgment in the proceeding or further earlier order to prevent cattle from straying from his land onto the plaintiffs’. In the context in which it was given, described by Keane JA, it was offered with the qualification that its operation would be postponed for, at most, three days. Consistently with that the plaintiffs did not seek any relief in respect of trespass by Mr Black’s cattle on the days 22 to 24 August 2005.

Proof of contempt: UK cases

There had been an ongoing debate in England, in the nineteenth and for part of the twentieth centuries, as to what was necessary to establish contempt, and whether deliberate or contumacious opposition to an order was required, or whether it was sufficient that there was willed or deliberately engaged conduct which was in fact in breach of an order. That debate was settled towards the end of the last century by the conclusion that disobedience of an order that was worse than casual, accidental, or unintentional, must be regarded as wilful, and as contempt,² and that it was unnecessary to prove “stubborn opposition” to the terms of an order or undertaking to establish contempt. Perhaps the strongest authority for the view that stubborn opposition was necessary was the decision of Stirling J in Worthington v Ad-Lib Club Ltd [1965] Ch 236.

In that case, Stirling J held (at 248) that, applying the decision in Fairclough v Manchester Ship Canal Co [1897] WN 7, CA (by which he considered himself bound), an order must be contumaciously disregarded before a judge could order committal for contempt of court. In the case before Stirling J the complaint was against both the director of a company, and the company itself, which owned and conducted a nightclub. It was alleged that in breach of an injunction given by a court, the company had continued to cause a nuisance (by noise) to the plaintiffs, who lived opposite the club premises. The club owner had consulted a sound expert, who advised on various structural works, which had been performed, and which the director thought would satisfy the plaintiffs’ complaints.

Stirling J concluded that the injunctive order (made by consent) had been disobeyed, because noise amounting to a nuisance had entered the flats of two plaintiffs; but he also considered that he had to be satisfied that the order of the court had been wilfully disobeyed. The terms of RSC Ord 42, r 31, under which the plaintiffs sought to punish the defendants, read:

“Any judgment or order against a corporation wilfully disobeyed may by leave of the court or a judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers thereof, or by writ of sequestration against their property.”

Stirling J considered the decision of Chitty J in Attorney-General at the Relation of the Leyton (Essex) Urban District Council v Walthamstow Urban District Council (1895) 11 TLR 533, and accepted that Chitty J had held therein that conduct did not have to be contumacious to support a finding of contempt; it was sufficient if there was a failure to take the steps which were necessary to prevent a breach of the order. But Stirling J then held that the Court of Appeal in Fairclough v Manchester Ship Canal Co had quite clearly stated that mere disobedience or failure to comply was not enough and there had to be a contumacious failure or disobedience.³ The report in Fairclough v Manchester Ship Canal Co, to which Stirling J referred in Worthington v Ad-Lib Club Ltd, was the Weekly Note report, which Stirling J cited as reading simply:

“The principles on which the court acts when it is asked to sequestrate the property of a company upon the ground of disobedience to one of its orders are the same as those applicable where it is sought to commit a private individual to prison for contempt. In these cases, casual, or accidental and unintentional disobedience to an order of the court is not enough to justify either sequestration or committal; the court must be satisfied that a contempt of court has been committed – in other words, that its order has been contumaciously disregarded.”

A fuller report, not cited to Stirling J, is available in (1897) 41 Sol. Jo. 225, which relevantly reads:

“The plaintiffs are here seeking to sequestrate the property and effects of the defendant company. The ground of that application is that the defendants have committed a contempt of court by wilful disobedience of an order of the court. The case is as if it were sought to commit a private individual to prison for contempt. We desire to make it clear that in such a case no casual or accidental and unintentional disobedience of an order would justify either commitment or sequestration. Where the court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and committed under circumstances which negative any suggestion of contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, it would not take the extreme course of issuing an order either of commitment or sequestration. To justify so serious a proceeding the court must be satisfied that a contempt of court has been committed – in other words, that its order has been contumaciously disregarded.”

Stirling J recognised in Worthington v Ad-lib Club that Warrington J (as His Lordship then was) had come to a different conclusion in Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190. In that case the plaintiffs had obtained an injunction restraining the Trowbridge UDC from causing or permitting any of the sewerage of their district to pass through any sewers belonging to them into the stream or natural watercourse known as the Biss on the Cockhills Farm, and the Council undertook thoroughly to clean the bed and banks of the stream after a certain period. That order and undertakings were given in 1896, and the plaintiffs later complained that since October 1 1909 the defendants had permitted sewerage to pass through sewers belonging to them into the stream, and had failed to perform their undertakings thoroughly to clean the bed and banks of the stream of sewerage deposits. Warrington J found that the measures the defendants had taken to clean the bed of the stream had been of a perfunctory character and quite insufficient for the purpose, but that with regard to the banks they had done as much as could reasonably be required of them.

The judgment records that after the injunction was given (in 1896), the defendants set themselves to construct a system of drainage for Trowbridge Town at very considerable expense, which if properly worked would not result in any effluent flow to which the plaintiffs could properly object. But the plaintiffs alleged that the system of drainage had not been properly worked, and Warrington J concluded that breaches of the injunction had been proved, and that “they were in some instances the result of structural causes which had since been remedied, but in others of the acts of one of the defendants’ servants which were neither casual nor accidental and unintentional.” He held (at 194):

“In my judgment, 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. I think the expression ‘wilfully’ in Order XLII., r. 31 is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v. Manchester Ship Canal Co.”

Warrington J held that the plaintiffs had made out their case for the issue of a writ of sequestration in respect of the breaches of the injunction, and it appears, in respect of the undertaking to clean the bed of the stream. It seems that he did not so conclude regarding the undertaking to clean the banks, from which it follows he considered that doing that which could reasonably be required was sufficient to avoid a finding of “wilful” disobedience; and that the acts of the “servants” which resulted in breaches of the injunction were apparently deliberately done. There was no express finding that breaches that were the result of structural causes, since remedied, proved a wilful disobedience.

An equally stern view had been taken in Spokes v Banbury Board of Health (1865) LR 1 Eq 42, where an injunction had been granted on 6 March 1865 restraining a local board of health from causing or permitting sewerage, or water polluted therewith, to pass through drains or channels under its control into a river to the injury of the plaintiff. Execution of the order was stayed till 1 July. The Board did not stop the flow of sewerage into the river after 1 July, and pleaded that it had not yet succeeded in discovering a mode of deodorising the sewerage, that compliance with the order was practically impossible without stopping the drainage of the town, (which would expose the company to hostile proceedings at law and equity), that there had been no wilful default, and that a sequestration order would be ineffectual as the property of the board was all public property. Sir W. Page Wood, VC, held that the rights of those who are injured cannot depend upon the question of whether it be one or many who inflict the injury, and that if the case had been one of an individual, the court would have punished that person for contempt.

His Lordship remarked that an order must be obeyed, and that those who wish to get rid of that order must do so by the proper course, an appeal⁴; and that the plaintiff need not care in the least whether the board could find a way to deodorize the sewerage or not.

“The Plaintiff only says he has an order of the Court which forbids them from sending down filthy sewerage to him; it is their duty not to send it; he has nothing else to do with it; he is content to rest on the order of the Court, and it is for them to show the Court that they have obeyed it.⁵

He granted the sequestration order, being satisfied that there were no means of effectually dealing with the sewerage, and that the defendants should simply stop sending it. He found there had been a wilful breach of the order.

On those facts that was true; the defendants had simply found it very inconvenient to obey the order, and impossible to devise a method of doing so without completely stopping the sewerage flow. That what was they had to do, and they had not done it. That approach, of requiring that the necessary steps be taken to comply even if very onerous, supports the order under appeal in these proceedings, if there were steps which could have been taken by Mr Black, but which had not been.

Australian authority

In this country that dispute described in the UK was settled in the decision in the High Court in AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98. The joint judgment of Gibbs CJ, Mason, Wilson, and Deane JJ reviewed the English cases and approved the statement by Warrington J in Stancomb that it is no answer to proceedings for contempt to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order; and that it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was “through carelessness, neglect, or even in dereliction of his duty”. I respectfully observe that that judgment requires that there be a wilful act or omission, but holds that vicarious liability can exist for wilful acts of servants or agents who themselves are being careless, neglectful, or acting in dereliction of a duty owed by the servant or agent.⁶

In AMIEU v Mudginberri Station the joint judgment later held as follows:

“... we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.”⁷

In Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118⁸ the Queensland Court of Appeal split in much the same way as the judges in the earlier English decisions cited, as to what was necessary to prove contempt. The President wrote that a failure to comply with an injunction or undertaking may not amount to contempt when genuine and reasonable attempts to comply have been made, citing Worthington v Ad-Lib Club Ltd.⁹ Pincus JA held that a party could be guilty of contempt who had failed to take proper steps to ensure compliance (by agents and employees) with an undertaking.¹⁰ Williams J (as His Honour then was) cited¹¹ from the passage by Warrington J in Stancomb v Trowbridge Urban Council at 194, referred to in AMIEU v Mudginberri Station, where Warrington J wrote of a corporation, that:

“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.”

That of course is a description of vicarious liability, rather than a description of conduct which will result in a finding of contempt. The latter finding, as the High Court explained, would depend upon a conclusion that acts of servants or agents were not casual, accidental, or unintentional.

Williams J noted that the judgment in Stancomb v Trowbridge Urban District Council had been approved by Lord Wilberforce in the judgment in the House of Lords in Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15 at 109, and 112-113, by the High Court in AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 111-113, and again by the House of Lords in Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 at 479. Lord Nolan wrote in that case:

“The view of Warrington J has thus acquired high authority. It is also the reasonable view, because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional.”¹²

On my analysis of these cases, while establishing breach of an order or undertaking is simply a matter of fact, establishing contempt of it is a matter of attitude or state of mind, and always has been. I understand the statement by Lord Russell in Fairclough v Manchester Ship Canal Co, quoted by Keane JA, and referring to casual and accidental conduct in breach of an order which might result in the offending party being visited with a costs order, and might lead to an inquiry as to damage, to be a description of the consequences of a breach of an order, not a description of consequences of contempt of an order. Contempt is established by proof of a deliberate act or omission which breaches an order or undertaking. It is no defence that the party deliberately doing the act honestly believes, or was wrongly advised, that it would not be in breach of the order,¹³ if the act was deliberately done. It is no defence if a party wrongly believes the party’s inadequate steps are reasonable ones, if there is a deliberate choice made not to do more. The proposition that no particular intent is necessary to establish contempt¹⁴ is not the same as the statement that there can be contempt without a deliberate act or omission. For that reason I agree with the observation by Atkinson J in Bakir v Doueihi & Ors [2002] QSC 19¹⁵ that:

“The breach of an order will not constitute contempt unless it is wilful and not casual, accidental or unintentional.”¹⁶

In my respectful opinion, that statement accords with the joint judgment in AMIEU v Mudginberri Station Pty Ltd.

In Witham v Holloway (1995) 183 CLR 525 the High Court ruled that all proceedings for contempt, whether for civil or criminal contempt, must realistically be seen as criminal in nature, and that accordingly all charges of contempt must be proved beyond reasonable doubt. McHugh J, who agreed with the conclusions in the joint judgment of Brennan, Deane, Toohey, and Gaudron JJ, added in his separate judgment:

“But this Court has now authoritatively determined that in some circumstances courts do have power to fine for civil contempt. That power exists where the breach has not been the result of ‘casual, or accidental and unintentional disobedience.’ If, therefore, the breach has been wilful 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’. Thus, if the act or omission that constitutes the breach was done wilfully, the contemnor is now liable to be fined even if the breach was not contumacious.” (His Honour referred to Fairclough v Manchester Ship Canal Co, and to Stancomb v Trowbridge Urban Council.¹⁷

I consider it follows that a deliberate act or omission which is in fact in breach of an order will constitute contempt, and to prove contempt it is necessary and sufficient to prove that much. There will be no contempt proved if the act or omission is “casual, accidental or unintentional”. The challenge in this case is in describing what constitutes a deliberate omission. Stirling J, and McMurdo P, have held that genuine and reasonable attempts to comply with an order are not a wilful omission, and that is consistent with Warrington J’s conclusion that the defendant in Stancomb had done as much as could reasonably be required of them in cleaning the banks. I also note that Stirling J was quite prepared in Worthington v Ad-Lib to conclude that there had been a deliberate disregard of an order if no real trouble was taken to obey it.¹⁸ In this appeal the learned trial judge held that Mr Black could have done more, for example by improving the fence at the creek crossing or more actively repairing the fence, and had not been imbued with a sufficient sense of urgency.

The Lades had to prove that beyond a reasonable doubt that Mr Black was in contempt of his undertaking. That required proof that he deliberately omitted to comply with it, not just that his cattle were on the Lade’s land. The evidence established that Mr Black genuinely tried to comply, but had not taken all reasonable steps open, and had simply refused to consider, for example, an electric fence. That was sufficient to prove contempt. I agree with Keane JA that Mr Black choose not to improve or add to the fencing, and that was a deliberate omission as described in the judgment in AMIEU v Mudginberri Station. For that reason I agree that the learned trial judge was entitled to make a finding of contempt, as the learned judge was obliged to do, before the provisions of Uniform Civil Procedure Rules 1999 (Qld) rr 900 and 930 applied to Mr Black.

KEANE JA: In a litigious society, enthusiasm for litigation may, in some cases, overwhelm rational consideration of whether "the game is worth the candle" with the unfortunate result that the costs expended by the parties upon the litigation vastly exceed the monetary value of the matters in dispute. The present is such a case. Nevertheless, it raises an important issue as to the power of the court to punish disobedience of orders made by it or of undertakings given to it. In particular, the appeal raises a question as to the extent of the power of the court to impose a fine for failure to comply with an undertaking to the court.

Background

The parties to these proceedings have been in a longstanding dispute concerning the alleged trespass of the appellant's cattle onto the sugar cane growing lands of his neighbours, the respondents. On 22 August 2005, the appellant gave an undertaking to the court "to prevent cattle from straying from [his] land onto lands" owned by the respondents.

Thereafter, cattle were alleged to have strayed from the appellant's land onto the respondents' land. The appellant's response was either to deny that any such strays were his cattle, or to assert that the cattle were not on the respondents' lands.

On 23 September 2005, the respondents brought an application for contempt as a result of the alleged breach of the appellant's undertaking. That application was heard on 27 and 28 October 2005. It was determined on 9 November 2005.

The learned primary judge found that on 26, 27, 28 and 29 August 2005, cattle strayed from the appellant's land onto the respondents' lands.¹⁹ The trial judge concluded that this was a contravention of the appellant's undertaking of 22 August 2005.²⁰

Pursuant to s 49(1) of the Penalties and Sentences Act 1992 (Qld) ("the Act"), which the primary judge applied by reason of r 930 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"), his Honour ordered that the appellant be fined $500. His Honour also dismissed the appellant's application to be relieved of his undertaking and ordered him to pay the costs of the proceedings.

I will now consider in turn the appellant's challenges to the decision of the primary judge.

What did the undertaking require?

The appellant's first ground of challenge is that the undertaking given by the appellant is properly to be understood as requiring only that all reasonable steps be taken to comply with it; or, as it was also put in the appellant's written and oral submissions, the appellant's undertaking required only that all but casual or unintentional trespass be prevented.

This submission finds no support in the language of the undertaking. It was expressed in absolute and unqualified terms, which reflected the respondents' right to the undisturbed possession of their properties.

The appellant sought to rescue this submission by referring to the terms of a letter sent by the appellant's solicitors to the respondents before the undertaking was given. That letter included the advice that:

"it is our clients [sic] intention to comply with his undertaking by removing cattle from those parts of his property where the cattle have access to areas adjacent to the boundary with your clients [sic] properties. This process of moving the cattle is likely to take 2-3 days."²¹

The appellant's contentions developed in oral argument are that his undertaking should be understood in the light of this letter, and that the reference in the letter to "2-3 days" to move the cattle from areas adjacent to the boundary between the properties of the respective parties should be understood as meaning "some reasonable time" rather than as meaning "2-3 days".

No authority was cited for either of these contentions. They have little to commend them in point of principle. Even if it be accepted that the letter could have any effect at all on the unambiguous terms of the undertaking, it could only be to postpone the operation of the undertaking for "2-3 days". On no view could the letter have the effect of postponing the operation of the undertaking beyond three days, and it certainly could not have the effect of confining the appellant's obligation to such steps as might reasonably be available to him to ensure that his cattle ceased straying upon the respondents' property.

The appellant also contends in his written submissions that the interpretation of the undertaking which he propounds is supported by the decision of this Court in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation.²² In that case, an undertaking was given by a corporation to refrain from certain conduct. That case was concerned with the circumstances in which a corporation could be held to have breached the undertaking by reason of the conduct of its employees.

The reasons of McMurdo P and Pincus JA in Evenco support the view that, in the case of a corporation, a "failure to comply with an injunction or undertaking may not amount to contempt where genuine and reasonable attempts to comply have been made".²³ But the reasons of McMurdo P and Pincus JA afford no support to the appellant's attempt to introduce considerations of "reasonableness" into the undertaking in the present case so as to relieve the appellant of the absolute obligation to prevent his cattle from straying onto the respondents' lands.

Unlike Evenco, the present case is not concerned with the special difficulties involved in determining the liability of a corporation for contempt of court. A corporation can be responsible for contempt only by reason of the acts or omissions of its agents or employees who are, of course, apt to act on their own independent volition whatever their employer's instructions to them may be. In this case, the obligation to prevent the movement of cattle onto the respondents' lands was an obligation directly undertaken by the appellant himself. It was absolute and unqualified. The protection which it afforded the respondents cannot be whittled down by limiting the appellant's obligation as if it were merely an undertaking by the appellant to use "genuine and reasonable attempts" to prevent his cattle straying.

It is to be emphasised that the appellant's undertaking was that he would achieve a particular result, namely to prevent his cattle straying onto the respondents' lands. It was not an undertaking to refrain from some form of conduct. The appellant was plainly obliged to exert himself to achieve the result which he had undertaken to achieve. It may be said that the burden assumed thereby by the appellant was a heavy one. But it was not excessively onerous. Indeed, the appellant's obligation was one which the respondents were entitled to insist upon by reason of their rights as owners of neighbouring properties.

In any event, the appellant cannot avoid the conclusion that his failure to comply with his undertaking was a contempt of court by relying upon what he regarded as reasonable measures to achieve the result. The case is strongly analogous with the decision of Page Wood VC (as Lord Hatherley then was) in Spokes v Banbury Board of Health.²⁴ In that case, an injunction restrained a local board of health from permitting sewerage to pass through drains or channels under their control into a river. The flow of sewerage was not stopped, compliance with the order proving to be practically impossible without incurring liabilities to other persons. Page Wood VC made a sequestration order against the local board of health. He rejected the contention that, in these circumstances, there had been no wilful contempt.²⁵ His Lordship said:

"So long as it exists, the order must be obeyed, and obeyed to the letter; and any one who does not obey it to the letter is guilty of committing a wilful breach of it, unless there be some misapprehension which all mankind are subject to, and which may mislead him upon the plain reading of the order."

It is clear from this decision, which it seems has never been judicially disapproved, that a breach of an undertaking of the kind in question is relevantly wilful if it is not obeyed to the letter, even though obedience may arguably be "unreasonably" onerous. As Page Wood VC said:²⁶

"It is not for me to say how [the defendants] are to [remove the evil]. But what they have done they must undo. They must take their own steps …"

In the present case, it is clear that the primary judge was right to hold that the appellant had not complied with his undertaking to the court.²⁷ The suggestion that the undertaking would not be breached if reasonable steps were taken by the appellant to procure compliance must be rejected as involving an impermissible reading of the undertaking.

The appellant's alternative contention that the undertaking should be read as requiring only that all but casual or unintentional trespass be prevented confuses the reasonableness of a failed attempt at compliance with whether the failure actually to comply can be said to be deliberate. One may act reasonably in attempting to perform an obligation but intentionally fail to perform the obligation by refusing to accept an "unreasonable" hardship. The appellant's alternative contention also confuses what is required by the undertaking with other issues, such as whether the breach of the undertaking constituted a contempt of court and whether the breach was punishable by a fine. A fuller discussion of these issues must await a summary of the primary judge's findings in relation to the circumstances of the appellant's non-compliance with his undertaking.

The circumstances of the appellant's breach of undertaking

The appellant went about the achievement of what he had undertaken by attempting to remove all cattle from a 4,000 acre paddock which adjoins the respondents' lands.²⁸ On 22 August 2005, the appellant and his brother in law, Mr Holmes, mustered this paddock. Almost all of the approximately 200 head of cattle which generally ran in this paddock were removed. There were some cattle in that paddock which, as the appellant was aware, had not been mustered.²⁹ The paddock was hilly and parts of it were difficult to access. Subsequently, for more than a week, the appellant and Mr Holmes searched for the remaining cattle, which appear to have been seven in number. These were all removed by 2 September 2005.³⁰

The primary judge found that the appellant "adopted a means of removing the cattle from the paddock which was reasonable".³¹ The primary judge said that, if consideration were confined to the steps taken by the appellant to muster the cattle, he would "not be prepared to find that [the appellant] had failed to do all things reasonably possible to prevent the cattle trespassing".³² His Honour would have been disposed to describe the trespasses by cattle which were in inaccessible areas at the time of the muster as "casual or unintentional events as those terms were used by Warrington J in Stancomb v Trowbridge Urban District Council".³³ However, as his Honour pointed out, consideration of the appellant's conduct could not be confined to the muster.

The primary judge found that the cattle entered the respondents' lands on the days in question "as a result of the inadequacy of the boundary fencing in a number of areas adjacent to each [respondent's] lands".³⁴ The appellant made some attempt to repair the fence, but his Honour found that it was "inadequate to prevent the cattle from trespassing".³⁵

His Honour held in this regard that:

"These trespasses must be taken to have been in breach of the undertaking by the [appellant] to the [respondents] ... once he knew that he had not obtained all of the cattle in the paddock adjacent to the [respondents'] lands when he sought to do so he ought to have taken urgent steps to fix those parts of the fence which allowed the cattle to trespass onto the [respondents'] lands. He would have known that the [respondents] were at this time alleging that cattle were still trespassing …".³⁶

His Honour went on to conclude that he was:

"satisfied that the [appellant] did not act contumaciously and did in fact take substantial, but in the result, inadequate steps, to prevent the cattle trespassing … the [appellant] may not have been sufficiently imbued with the urgency of the situation and certainly not as concerned about it as the [respondents] were. He was in something of a state of denial about the trespass of his cattle upon the [respondents'] lands."³⁷

The primary judge proceeded to impose a fine pursuant to s 49(1) of the Act. It is apparent that the authority upon which his Honour relied to impose a fine under the Act is contained in r 900(1)(a) and r 930 of the UCPR. It is convenient to set out here the material parts of these provisions of the UCPR. They are:

"900****Undertakings

(1) An undertaking, other than for the payment of money, may be enforced in 1 or more of the following ways -

punishment for contempt of the person liable under the undertaking;

seizing property of the person liable under the undertaking under rule 917;

…

930 Punishment

(1) This rule applies if the court decides that the respondent has committed a contempt.

(2) If the respondent is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992."

The primary judge did not expressly find that the appellant had committed a contempt of court by reason of his breach of the undertaking. This circumstance, coupled with his Honour's finding that the appellant's conduct was not contumacious, gave rise to an argument that, in truth, the appellant's failure to comply with his undertaking had not resulted in any contempt of court. While it was accepted that an undertaking to the court has the same effect as an injunction in terms of the obligations which it imposes on the party giving the undertaking, it was argued, in effect, that a breach of an undertaking is not a "contempt" unless it is accompanied by a mental element variously described as wilfulness or contumacy or deliberate defiance of the order of the court. The determination of that argument ultimately turns on the proper interpretation of r 930 of the UCPR. Before addressing that issue, it is convenient to consider the power of a court to impose a fine for contempt under the general law.

Contempt: the general law apart from statute

Under the general law, apart from statute, a party disobedient to an order of court or an undertaking to it was said to be "in contempt", but such "contempts" were not, without more, regarded as criminal.³⁸

In The King v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section,³⁹ Dixon J said:

"The distinction between civil and criminal contempts is well recognized, although when orders restraining or commanding the doing of specific things are defied or disobeyed the remedy by contempt may have a double aspect … It is enough for present purposes to say that the imposition of a fine … shows that the order is of a punitive or disciplinary nature."

Under the general law, apart from statute, it was established that "contempt lies in disobedience of a court's order".⁴⁰ References in the authorities to the requirement that conduct be contumacious were concerned with the power to fine a contemnor by way of punishment for a contempt; they were not concerned with establishing whether a contempt had occurred. Punishment was regarded as a consequence solely appropriate to a defiant breach of a court's order. Thus, at common law, this mental element was necessary to authorise imposition by the court of a fine by way of punishment of a criminal contempt as a result of a breach of an order.⁴¹ This mental element was never thought to be necessary to establish a civil contempt of court sufficient to enliven the power of the court to impose non-punitive orders by reason of disobedience to an order of the court or an undertaking to the court.⁴² In Witham v Holloway,⁴³ McHugh J discussed the history of "contempt of court" and the long-recognised distinction between civil and criminal contempts, pointing out that "civil contempts … are concerned with failures to comply with judgments or orders of the courts", and that civil and criminal contempt overlap when disobedience is contumacious, so that:

"[d]efiance of the court's order renders criminal what would be otherwise civil contempt. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has 'a penal or disciplinary jurisdiction (that is) exercised by the court in the public interest'".

McHugh J went on to say:⁴⁴

"As I have pointed out, until recently the accepted view was that a court had no power to fine for civil contempt. At first sight it seems anomalous that a court could imprison but could not fine a person for civil contempt. But the distinction is logical if the sole or dominant purpose of proceedings for civil contempt is to coerce the contemnor to comply with an order or to fulfil an undertaking … It was for that reason that, in Australian Consolidated Press Ltd v Morgan ((1965) 112 CLR 483 at 499), Windeyer J said that, in the absence of statutory authority, courts had no power to fine for a civil contempt. But this Court has now authoritatively determined that in some circumstances courts do have power to fine for civil contempt (Mudginberri (1986) 161 CLR 98 at 109 - 115 …). That power exists where the breach has not been the result of 'casual, or accidental and unintentional disobedience' (Fairclough v Manchester Ship Canal Co (1897) 41 Sol Jo 225). If, therefore, the breach has been wilful, 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' (Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). Thus, if the act or omission that constitutes the breach was done wilfully, the contemnor is now liable to be fined even if the breach was not contumacious (Steiner Products Ltd v Willy Steiner Ltd [1966] 1 WLR 986 at 992 …)."

So far as the law apart from statute is concerned, it is clear that it was not necessary for the respondent in this case to show that the appellant intended that cattle should stray onto the respondents' lands in order for him to be found to be in contempt of court. As Warrington J said in Stancomb v Trowbridge Urban Council:⁴⁵

"In my judgment, if a person or 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 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 Australian Consolidated Press Limited v Morgan,⁴⁶ Windeyer J explained that "breach of an undertaking is, like disobedience of an injunction, a contempt of court, making the contemnor liable to" punishment, and his Honour went on to say that the "undoubted power to fine for criminal contempt merely strengthens my misgivings about the fine in this case, for disobedience of an injunction or breach of an undertaking is not a criminal offence". It is to be emphasised here that Windeyer J did not suggest that breach of an undertaking is not a contempt of court: rather, he plainly accepted that it was, and went on to say that, without more, it was not a criminal offence and, therefore, not punishable by a fine. Windeyer J went on to refer⁴⁷ to judicial authority from the United States of America where the courts insisted that the power to impose a fine for contempt required, in addition to the violation of the injunction or undertaking, that there be some "distinctively criminal feature" such as "acts in wilful defiance of the authority and power of the court". At the root of this insistence was the perceived distinction between orders whose purpose is the vindication of the private interests of parties to litigation and orders whose purpose is the vindication of the public interest in maintaining the authority of the courts. As will be seen directly, this distinction has now been rejected by the High Court of Australia.

A central theme of the breakdown of the historical dichotomy between civil and criminal contempts has been the development of the view that a punitive order, such as a fine, might be imposed even when there was not contumacious or defiant disregard of orders or undertakings because, even in what have been regarded as cases of "civil contempt", there is a public interest in vindicating the authority of the court.⁴⁸ This appreciation of the pervasive public interest in the vindication of the authority of the court led Stamp J, in Steiner Products Ltd v Willy Steiner Ltd,⁴⁹ (in a passage specifically approved by Gibbs CJ, Mason, Wilson and Deane JJ in AMIEU v Mudginberri Station Pty Ltd⁵⁰) to hold that any "disobedience which was worse than casual, accidental or unintentional must be regarded as wilful" so as to constitute a contempt punishable by fine.⁵¹

The source of the expression "casual, accidental or unintentional" is the obiter dictum of Lord Russell of Killowen in Fairclough & Sons v The Manchester Ship Canal Co⁵² where his Lordship said:

"The plaintiffs are here seeking to sequestrate the property and effects of the defendant company. The ground of that application is that the defendants have committed a contempt of court by wilful disobedience of an order of the court. The case is as if it were sought to commit a private individual to prison for contempt. We desire to make it clear that in such case no casual or accidental and unintentional disobedience of an order would justify either commitment or sequestration. Where the court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and committed under circumstances which negative any suggestion of contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, it would not take the extreme course of issuing an order either of commitment or of sequestration. To justify so serious a proceeding the court must be satisfied that a contempt of court has been committed - in other words, that its order has been contumaciously disregarded."

It may be noted that the language in which this passage is cast may tend to confuse the issue of whether disobedience of a court order is a contempt with the issue of the appropriate remedy for a contempt. That Lord Russell speaks of the possibility of imposing an order for costs and ordering an inquiry as to damages is itself a recognition that a power of the court to make orders against a contemnor has arisen and that the balance of the passage is concerned with the strength of the relief which is appropriate. No basis for such orders other than as sanction for disobedience constituting a civil contempt was identified by his Lordship. Secondly, and more importantly, as is made clear in the reasons of AMIEU v Mudginberri Station Pty Ltd, a "contumacious disregard" of the undertaking is no longer necessary as a pre-requisite to punishment of the contempt by a fine. The relevant passage⁵³ is as follows:

"Thus, it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was 'through carelessness, neglect, or even in dereliction of his duty': per Warrington J in Stancomb. In Mileage Conference ([1966] 1 WLR 1137) itself, substantial fines were imposed on companies for contempt by breach of undertaking which was not merely non-contumacious but was committed reasonably on legal advice."

In my respectful opinion, if a party can be guilty of contempt by reason of disobedience of an undertaking due to the carelessness or neglect of an employee, then, a fortiori, a party is guilty of contempt where the breach of the order has been brought about by the party's own neglect of steps necessary to prevent the breach. There must, of course, be actual disobedience. There cannot be disobedience if the alleged contemnor does not know of the order which he or she is alleged to have breached. Nor could there be disobedience where the breach of the order occurs by reason of circumstances outside the control of the alleged contemnor. But if the facts of the case enable one fairly to conclude that the alleged contemnor has disobeyed the order or undertaking then that is sufficient to constitute a contempt. The question under the general law then was whether the circumstances of the disobedience were such as to warrant an order in the nature of a punishment as opposed to a vindication of the rights of the other party to the litigation.

In Australian Consolidated Press Limited v Morgan,⁵⁴ Windeyer J was at pains to explain that a court was not empowered to impose a fine for a civil contempt in the absence of statutory authority. It was necessary, in his Honour's view, that the contempt have the character of a crime in order to enliven a judicial power to punish by way of a fine. But as I have noted, reference to more recent decisions of the High Court shows that, at common law, there is now recognised a power to punish, by fine or imprisonment, disobedience of an order or undertaking which might previously have been regarded as constituting only "civil contempt".

The reasons of the High Court in AMIEU v Mudginberri Station Pty Ltd⁵⁵ and in Witham v Holloway⁵⁶ show that the following propositions have now been established in relation to the general law of contempt:

disobedience of an order of the court, or of an undertaking to the court, is aptly described as a contempt of court; this is so regardless of whether the disobedience is attended by the contumacy previously thought necessary to attract the special description of "criminal contempt";

the dichotomy previously recognised between civil contempt and criminal contempt was based, in part at least, on the different rationales which were understood to inform the different kinds of contempt: civil contempt was understood to be concerned with disciplining the party in breach in vindication of the private interests of the parties to civil litigation while criminal contempt was understood to be concerned with the punishment of the offender in vindication of the public interest in the due administration of justice, and, in particular, the maintenance of the authority of the courts;

just as the historical differentiation between discipline and punishment and the vindication of the private interest and the public interest can no longer be sustained, so punishment by way of a fine or imprisonment as a remedy for contempt may be imposed where the disobedience of a court order is more than "casual, accidental or unintentional". It is now not essential to show that the disobedience is contumacious or defiant;

because the sanction for any contempt is inevitably to some extent punitive, all contempts must be proved beyond reasonable doubt.

It should be noted here that, as Pincus JA observed in Evenco,⁵⁷ AMIEU v Mudginberri Station Pty Ltd⁵⁸ was not about whether liability for contempt of court had occurred, but was only concerned with "the type of relief which was appropriate". The view of the majority of the High Court in AMIEU v Mudginberri Station Pty Ltd was clearly to the effect that, under the general law, a fine could be imposed for a contempt notwithstanding the absence of contumacy or defiance if the disobedience was such that it could not be regarded as merely "casual, accidental or unintentional".

The UCPR

I have been discussing the position under the general law apart from statute. Because of the provisions of r 930 of the UCPR, there is in Queensland a statutory basis for the imposition of a fine which does not require that it be established that the breach of the order was worse than "casual, accidental or unintentional". It is clear that the primary judge proceeded on this statutory basis.

Whether the primary judge was correct in proceeding to impose a fine on this basis turns upon the interpretation of the word "contempt" as it is used in r 900(1)(a) and r 930(1) of the UCPR. In my respectful opinion, that word cannot be understood as referring only to "criminal contempt" or to an otherwise limited class of contempts.

The general language in which these rules are cast does not encourage the introduction of a limitation on their operation. It is clear from the discussion above that, historically, disobedience to a court order, even if not wilful, was accurately described as a "contempt" even though it was also referred to as a civil contempt (and thus a contempt which was not apt to attract criminal punishments under the general law apart from statute).

Furthermore, r 930 appears in the UCPR, a body of rules designed to regulate civil proceedings and, in particular, to provide generally for sanctions for disobedience to orders of the court in civil proceedings. In such a context, it is unlikely that the lawmaker intended a general reference to "contempt" to be confined to a narrow class of contempts which were traditionally described as "criminal".

I consider that it is necessary to give the word "contempt" its well understood general meaning without importing limitations on the language of the rules which would mean that those contempts previously referred to as "civil contempts" are excluded from the scope of the UCPR. This approach has the advantage of bringing clarity and certainty to the extent of the powers which may be exercised by the court to deal with contempts of all kinds. No doubt, the historical limitations on the exercise of the power to punish by fine draw support from the reluctance of the courts to punish conduct which is not intentionally wrongful by criminal sanctions; but there is a substantial degree of indeterminacy associated with the common law basis for the court's power to punish for contempts. This Court should not be astute to frustrate a legislative attempt to put the court's power on a simpler and clearer footing than that which can be discerned from judicial discussion of this subject. And, as will be seen in a moment, in Queensland, rules of court having the force of statute have long avoided the need to proceed by reference to the somewhat elusive differences in judicial language which characterised the discussion of these matters in the older English authorities. The policy of the law against the imposition of punitive orders on those who are not guilty of wilful misconduct will, no doubt, be reflected in the exercise of the judicial discretion conferred by the rules and the Act. Indeed, a real benefit of r 930 of the UCPR is that it enables the court to come to a view of the nature of a contemnor's conduct and the sanction appropriate for that conduct without having to mediate those considerations through indeterminate formulae, such as "casual, accidental or unintentional". Under r 930 of the UCPR, a court may deal with contempt on a case-by-case basis according, inter alia, to the degree of personal fault revealed by the circumstances of the case.

It is important here to note that a statutory power to impose a fine for civil contempt is not an innovation in Queensland introduced by the UCPR. In Australian Consolidated Press Limited v Morgan,⁵⁹ Windeyer J observed:

"I may add that in Queensland rules of court having statutory authority expressly authorize a fine for disobedience of the order of the Court in lieu of or in addition to committal … see Hitzman v Moore [1935] Qd WN 10."

Reference to Hitzman v Moore shows that Windeyer J was referring to a rule which became O 84 r 8 of the Rules of the Supreme Court which preceded the UCPR. That rule provided that, upon an application for punishment for contempt of court, the court "may impose a fine instead of ordering the accused person to be committed to prison, or may impose a fine in addition to ordering his committal …". It should be noted that Windeyer J clearly regarded disobedience to an order of the court (or an undertaking to the court) as a "contempt" for the purpose of the rule and as justifying the imposition of a fine under the rule even though that course would not have been open to the court under the general law.

It should also be noted that neither of the decisions in AMIEU v Mudginberri Station Pty Ltd or Witham v Holloway casts doubt on the long-standing recognition of "civil contempt" as a species of contempt of court. Nothing in the reasons for the decisions in AMIEU v Mudginberri Station Pty Ltd or Witham v Holloway can be taken to suggest that references to contempt of court in statutes or rules having the effect of statute in force before those decisions were delivered should now be taken to refer only to contempts which would previously have been classified as criminal contempts. Unlike the present case, neither of these cases was concerned with a provision cast in terms which have been judicially recognised as being apt to confer a general power to punish by fine any contempt whether it has been historically classified as "civil" or "criminal".

For these reasons, I am of the opinion that the learned primary judge was justified in relying upon r 930 of the UCPR, together with the Act, as the source of power to fine the appellant. Under r 930 of the UCPR, it was not necessary for his Honour to determine whether the appellant's breach of his undertaking was wilful. It was open to his Honour to impose such a fine as reflected the extent of the appellant's fault in failing to prevent his cattle straying.

Bakir v Doueihi

The only judicial authority which I have found which might arguably support the view that there is no contempt at all, and, therefore, no occasion for the operation of r 930(1) of the UCPR, where there has not been a finding that disobedience was "wilful and not casual, accidental or unintentional" is an obiter dictum of Atkinson J first stated in Bakir v Doueihi & Ors⁶⁰ that: "The breach of an order will not constitute contempt unless it is wilful and not casual, accidental or unintentional." This proposition was repeated by her Honour in her reasons in City Hall Albury Wodonga Pty Ltd & Ors v Chicago Investments Pty Ltd.⁶¹ This statement was not necessary for the decision in these cases because of her Honour's findings to the effect that the breaches in each case were contumacious.⁶² These were cases of flagrantly defiant contempts. Therefore, on any view of what is involved in a contempt of court, the parties in breach were liable to be dealt with for contempt.

Further, and more importantly for present purposes, her Honour was not concerned to discuss the scope of "contempt" as that term is used in r 930 of the UCPR. It will be apparent, however, from what I have written that I respectfully do not agree that her Honour's dictum is an accurate statement of the law apart from statute. As Windeyer J said in Australian Consolidated Press Limited v Morgan,⁶³ "contempt lies in disobedience of a court's order to do something". As has been seen from the discussion above, under the general law, the circumstances of intention attending the breach are relevant not to whether a contempt has occurred, but to whether the contempt is punishable by sanctions previously thought to be appropriate only to intentional disobedience of a court order. The authorities cited by Atkinson J in support of the proposition stated in Bakir v Doueihi & Ors do not support the view that only wilful disobedience may constitute a contempt of court.

The first authority cited by Atkinson J was AMIEU v Mudginberri Station Pty Ltd.⁶⁴ That case was not concerned with whether a contempt has occurred, but with the type of relief which was appropriate, as Pincus JA explained in Evenco.⁶⁵

The reasons of Pincus JA at paragraph [32] in Evenco were also cited in Bakir v Doueihi in support of the proposition set out above. That paragraph affords no support to the proposition under consideration. It is in the following terms:

"In Z Bank v. D1 [1994] 1 Lloyd’s Rep. 656 at 660, 661, it was held that disobedience of an injunction constitutes a contempt if the breach is done by a person acting within authority or if the party enjoined has not 'taken all possible steps to prevent breach …'; presumably 'possible' means 'reasonably possible'. Approaching the matter on the basis that some element corresponding to what the criminal law calls mens rea must be shown (see per Lord Denning M.R. in Heatons at 50), there is room for a finding of liability even if the employer does not intend to break the law:

'[A] man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence.'

per Windeyer J. in Vallance (1961) 108 C.L.R. 56 at 82. So the employer who has not taken proper steps to ensure that the injunction or undertaking is observed may be liable on that basis."

This passage is concerned with the issue of vicarious liability for contempt, and the nature of the mens rea necessary for an employer to be held liable for contempt. It is not concerned with the mens rea necessary for direct liability for contempt.

A passage from the reasons for decision in Stewart & Anor v Gymboree Pty Ltd & Anor⁶⁶ was also cited in Bakir v Doueihi in support of the proposition under consideration. Reference to the passage cited shows that it affirmed findings of contumacy in relation to the breach rather than the necessity for contumacy as a sine qua non of any liability to be dealt with for contempt.

The last authority cited in support of the proposition under discussion is Madeira v Roggette Pty Ltd.⁶⁷ Reference to the passages cited shows that it was conceded by the company in breach of the orders in question that it was guilty of a contempt of court. Furthermore, the findings of fact made by de Jersey J (as his Honour then was) in that case led his Honour to conclude that the circumstances of the breach involved "a flagrant disregard of those orders".⁶⁸ His Honour was not concerned to state definitively the essential elements of contempt of court. That de Jersey J conveniently described the breaches as "wilful, such as warrants a finding of contempt" cannot be interpreted as meaning that, absent wilfulness, there is no liability to be dealt with for contempt. In this regard, de Jersey J referred to the decision of the High Court in AMIEU v Mudginberri Station Pty Ltd, which, as has been said, was concerned, not with whether a party in breach was liable to be dealt with for contempt, but with the nature of the sanction which the court might impose.

In any event, as I have said, the statement of Atkinson J in the two decisions in Bakir v Doueihi and the decision in City Hall Albury Wodonga cannot be regarded as definitive of the scope of "contempt" referred to in r 930 of the UCPR because those cases were not concerned with that issue, and her Honour's statement did not purport to be a definitive exposition of the word "contempt" in r 930.

Finally in this regard, I should emphasise that nothing I have said above should be taken as casting any doubt on the correctness on the decisions in Bakir v Doueihi and City Hall Albury Wodonga. Those cases were, with respect, correctly decided having regard to the facts found in those cases.

Was there a contempt under the general law?

In any event, his Honour's findings support a conclusion that the appellant's failure to prevent the straying of cattle was not casual, accidental or unintentional. In my view, his Honour's imposition of a fine can also be sustained on the basis that, even at common law, there was a sufficient basis for imposing the punishment of a fine because of the appellant's failure to meet his undertaking.

The appellant's failure to take steps to repair the fence when he was told that cattle were still straying onto the respondents' lands was not accidental or unintentional. The measures which the appellant took to prevent cattle straying were inadequate. He was told by the respondents that that was so. His failure to take the steps which he could and should have taken because he was "in a state of denial" cannot be said to be "casual, accidental or unintentional".

It may be accepted that, statute apart, for a party to be guilty of a punishable contempt by reason of the breach of an undertaking to the court, that party's breach must be his or her own willed act as opposed to an event occurring unforeseeably or without his or her consent or knowledge. In this case, there can be no doubt that what the appellant did, and what he failed to do, in relation to performance of the undertaking was deliberate: the appellant took no steps by way of improvement to the fencing of the boundary when he knew that there were still cattle in the relevant paddock. The evidence showed, and his Honour found, that there were steps available to the appellant which he could have taken, but did not take. The appellant may have had no faith in the efficacy of steps to improve the fencing, and he may have truly believed that such extra precautions were an excessive burden upon him. None of these considerations, however, mean that he did not intend to do what he did and no more to prevent his cattle straying onto the respondents' land. None of these considerations deny the conclusion that the appellant's acts and omissions (in relation to preventing his cattle straying onto the respondents' land) were intentional.

It is clear that his Honour regarded the appellant's failure to erect even temporary fencing to prevent those cattle he had been unable to muster from straying, and his "state of denial" that his cattle were straying onto the respondents' lands, as "worse than casual, accidental or unintentional".

In AMIEU v Mudginberri Station Pty Ltd,⁶⁹ Gibbs CJ, Mason, Wilson and Deane JJ said:

"… a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional."

The primary judge did not hold that the appellant's omission to repair the fences was "casual, accidental or unintentional". The appellant does not have the benefit of a finding to that effect. Furthermore, in my respectful opinion, it is clear from his Honour's reasons that his conclusion was that the appellant's breach was, in truth, not merely "casual, accidental or unintentional".

Causation

At this point, I should mention the appellant's argument that the respondents had not established that the failure by the appellant to repair the fence would have prevented the cattle from straying onto the respondents' land.

The appellant's argument in this regard seizes upon his Honour's observation that: "I am not convinced that any of the alternatives suggested would have been likely to have been more successful."⁷⁰ It is to be emphasised that this observation was made by his Honour only in relation to the steps taken by the appellant to muster cattle out of the paddock. This observation was not made in relation to the appellant's failure to take steps to remedy the inadequate fencing through which his cattle were given to stray. Thus, there is no basis for the appellant's argument in the primary judge's findings of fact.

Other matters

The appellant's third ground of appeal was that he had been denied procedural fairness in that he was not given the opportunity to be heard in relation to penalty after the findings in relation to contempt had been made. This ground was not pressed in oral argument on the hearing of the appeal.

The respondents' written submissions point out that the parties were given the opportunity to make submissions on penalty, and it may be noted immediately that the appellant's counsel did not submit to the learned primary judge that submissions on penalty should await the judge's findings on the issue of contempt. That alone is a sufficient reason for concluding that the learned primary judge did not err in dealing with the issue of penalty as he did. A party cannot be taken to have been denied an opportunity which he has not sought.

In any event, there is no authority in support of the proposition that, as a matter of law, it was not open to the primary judge to deal with the issue of penalty at the same time as he determined the issue as to whether the appellant was guilty of contempt. The decision of Atkinson J in Bakir v Doueihi & Ors⁷¹ relied upon by the appellant in his written submissions as authority for the proposition that "it was not appropriate or in accordance with usual procedure that submissions be made [as to penalty] in advance of the findings of fact". But the judgment of Atkinson J in that case provides no basis for such a general statement or for regarding that statement as one of legal principle. The decision of Atkinson J was concerned with the interrelation between costs, compensation and penalty, and the desirability of dealing with these matters together, rather than whether it is necessary for submissions on penalty to be heard only after the findings of fact have been made.⁷²

Even if the better course might have been to hear submissions on penalty after the findings in relation to contempt had been made, the penalty which was imposed was indisputably no more than was justified as a vindication of the authority of the court.⁷³ There is no reason why this Court would be disposed to reduce that punishment.

Nor would this Court be disposed to make an order in relation to costs more favourable to the appellant. The appellant relies, in this regard, upon the decision of this Court in Stewart & Anor v Gymboree Pty Ltd & Anor⁷⁴ in support of the submission that costs should not be awarded to a successful applicant where the contempt proceedings were not necessary to enforce compliance with the undertaking. Once again, the appellant's argument is misconceived.

It is clear that, while the need to enforce compliance with an undertaking will sometimes be the occasion for contempt proceedings, and, therefore, a consideration relevant to the disposition of the costs of the proceedings, contempt proceedings are often amply justified as a vindication of the authority of the court and a punishment of those litigants who are not disposed to take seriously their undertakings to the court.

Conclusion and orders

In my respectful opinion, the appeal should be dismissed.

The appellant should pay the respondents' costs to be assessed on the standard basis.

JONES J: I agree with Keane JA and Jerrard JA that this appeal should be dismissed with costs. The evidence established beyond reasonable doubt that the appellant committed a contempt constituted by his failure to comply with his undertaking to the court. The breach, having been found, the power to fine provided by r 930 of the Uniform Civil Procedure Rules permitted the making of the orders from which this appeal arises.

However as the foregoing reasons include, as obiter dicta, differing views about what needs to be established to make out an allegation of contempt, I wish to add some remarks of my own.

In AMIEU v Mudginberri Station Pty Ltd,⁷⁵ the High Court traced the development of the law relating to contempt leading to the conclusion that there is great difficulty “in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criterion which divides one class of contempt from the other”.⁷⁶ The distinction was then drawn by characterising the act or omission constituting disobedience as wilful unless it is casual, accidental or unintentional. It is that disobedience which attracts censure and punishment. In their analysis of the cases, the High Court accepted the conclusions of the House of Lords in Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union and Ors⁷⁷ endorsing the correctness of the statement of Warrington J in Stancomb v Trowbridge Urban District Council⁷⁸ in these terms (at 194):-

“In my judgment, 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. I think the expression ‘wilfully’ in Order XLII., r. 31, is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v Manchester Ship Canal Co.”

In so endorsing the remarks of Warrington J, the House of Lords expressly rejected the challenge to that statement raised by Stirling J in Worthington v Ad-Lib Club Ltd.⁷⁹

In Mudginberri, in the reasons of the majority, the test is expressed as follows (at 113):

“In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.”

The test to establish contempt thus stated does not require proof of any specific mental element for the act or omission. Nor, in my view, is there any basis for importing notions of “reasonableness” into the question of whether a breach of the order or undertaking in fact occurred. Neither in the reasons of the High Court nor in the authorities there relied upon was there any reference to an inquiry into the reasonableness of the alleged contemnor’s conduct constituting the disobedience. The obligation of a corporation, trade union or employer, acting through employees or agents is similarly strict as indicated by the remarks of Warrington J in Stancomb that-

“… 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”.⁸⁰

That statement too, was endorsed by the House of Lords in Heatons and accepted as correct by the High Court in Mudginberri.

The notion that a finding of wilful disobedience may not amount to contempt “where genuine and reasonable attempts to comply have been made” as expressed by McMurdo P in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch)⁸¹ does not in my respectful view in accord with the authority of Mudginberri which binds this Court. Nor does it seem consistent with the English decisions relied upon. In Re Galvanised Tank Manufacturers’ Association’s Agreement⁸² Megaw P presiding in the Restrictive Practices Court said (at 1009):-

“We would, however, emphasize that a company which has given an undertaking to the court must be treated as having failed lamentably and inexcusably in its elementary duty if it fails to take adequate and continuing steps to ensure, through its responsible officers, that those officers themselves and anyone to whom they may delegate the handling of matters which fall within the scope of the undertaking, do not forget or misunderstand or overlook the obligations imposed by such undertakings.”

In Heatons the House of Lords expressed itself in the following terms (at p 113):-

“As soon as orders … were issued restraining the union itself or by its officers, servants, and agents from continuing such practice, the union became responsible for taking all possible steps to stop the blacking, including the unequivocal withdrawal of the shop stewards’ authority and, if necessary, disciplinary action.” [emphasis added]

The High Court in Witham v Holloway⁸³ determined that any allegation of contempt constituted by failure to comply with an order or an undertaking, requires proof at the criminal standard beyond reasonable doubt. In arriving at this decision the Court again referred to the former distinction between civil and criminal contempts and re-emphasized the public interest, stating that “[n]on-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties”.⁸⁴ Further, the Court observed that “proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect." The latter effect is, of course, more relevant to the pursuit of a private interest. Consequently if ever a determination of the “reasonableness” of the contemnor’s conduct such as might avoid the finding of a breach was required, it would have to be made against the background of those diverse interests. What is “reasonable” may not always be assessed in accordance with the same duty.

As the infringing act or omission is to be regarded as conduct of a quasi-criminal nature, the approach to a finding of breach is powered by those considerations. In the broadest sense a crime is an unlawful act or default which is an offence against the public rendering the person liable to legal punishment. Except in cases where the state of a person’s mind is an element in the offence, the evidence of commission of a crime is by the proof of overt acts or omission. The blameworthy state of mind is imputed to the wrongdoer by reason of that conduct being wilful. A blameworthy state of mind will not imputed if the act or omission is not voluntary or is the consequence of accident or the result of some casual outside force. These statements simply echo the test for determining when conduct is wilful such as to give rise to a finding of contempt.

The proof of breach of an undertaking does not require any specific mental element. Any relief from this quasi-criminal liability on the part of a contemnor is found in the exculpatory provisions of “casual, accident or unintentional”. There is not in my view any warrant for introducing into the test, now authoritatively stated in Mudginberri, concepts of specific intent or of reasonableness.

Accordingly I agree with the remarks made by Keane JA and with the order he proposes.

Footnotes

1. (1986) 161 CLR 98 at 113. ↩

2. The description comes from Stamp J in Steiner Products Ltd v Willy Steiner Ltd [1966] 1 WLR 986 at 992. ↩

3. [1965] Ch 236 at 246. ↩

4. (1865) LR 1 Eq 42 at 48. ↩

5. (1865) LR 1 Eq 42 at 49. ↩

6. (1986) 161 CLR 98 at 112. ↩

7. (1986) 161 CLR 98 at 113. ↩

8. [2000] QCA 108; Appeal Nos 3536 of 1999 and 3610 of 1999, 4 April 2000. ↩

9. [2001] 2 Qd R 118 at 127. ↩

10. [2001] 2 Qd R 118 at 131. ↩

11. [2001] 2 Qd R 118 at 142-143. ↩

12. [1995] 1 AC 456 at 479. ↩

13. As in McNair Anderson & Associates Pty Ltd v Hinch [1985] VR 309 at 313 and 314, or Foley v Herald-Sun TV Pty Ltd [1981] VR 315 (at 318-9). ↩