Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 388 (20 November 2003)

Last Updated: 20 November 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 388

FILE NUMBER(S): IRC 4658

HEARING DATE(S): 26/02/2003, 27/02/2003, 12/06/2003

DECISION DATE: 20/11/2003

PARTIES:

APPLICANT

Industrial Registrar of New South Wales

RESPONDENT

The Uniting Church in Australia Property Trust (NSW)

JUDGMENT OF: Marks J Boland J Haylen J

LEGAL REPRESENTATIVES

APPLICANT

Mr P I Lakatos of counsel

SOLICITORS

Crown Solicitor

RESPONDENT

Ms R S McColl SC with Mr A R Moses of counsel

then Mr L P Robberds QC with Mr A R Moses of counsel

SOLICITORS

Clayton Utz

CASES CITED: Attorney-General v Leveller Magazine (1979) AC 440

Attorney-General v Times Newspapers (1974) AC 273 at 387

Bell v Stewart (1920) 28 CLR 419 at 429-432

Chang Hang Kiu v Piggott [1909] AC 312 at 315

Catalfamo v Hersfield Holdings Pty Ltd (1981) 52 FLR 343

Coward v Stapleton (1953) 90 CLR 573 at 579-580

Commercial Bank of Australia Ltd v Preston (1981) 2 NSLR 554 at 558

Ex parte Bread Manufacturers' Ltd (1937) 37 SR (NSW) 242 at 249

Fraser v The Queen (1984) 3 NSWR 212 at 231

The Commissioner of Police v Donnelan and Hanson (unreported FCA 40587/94 and 40588/94 Court of Appeal 20 June 1995

Gough & Gilmour Holdings Pty Ltd & ors v Caterpillar of Aust Ltd and anor (No 9) [2001] NSWIRComm 260)

Gregory v Phillip Morris Ltd (188) 80 ALR 455

Hill v Parsons [1972] 1 CH 305

Harkianakis v Skalkos (1997) 42 NSWLR 22) [1972] 1 CH 305

Hunt v Clarke (1889 58 LJ QB 490 at 292

John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465 at 471

MacGroarty v Clauson (1989) 167 CLR 251 at 255

Sea Acres Rainforest Centre Pty Ltd v The State of New South Wales (2001) 109 IR 56

Selman v Sweet [2003] NSWIRComm 14

Turner v Australasian Coal and Shale Employees' Federation (1984) 55 ALR 635

Webster v Bakewell Rural District Council [1916] 1 Ch 300

Wilshire-Smith v Voltino Bros Pty Ltd (1993) 41 FCR 496 at 505)

Witham v Holloway (1995) 183 CLR 525

WorkCover Authority of New South Wales v Lucon (Australia) Pty Ltd (2002) 112 IR 332, [60] & [66]

LEGISLATION CITED:

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

Coram: Marks J Boland J

Haylen J

20 November 2003

Matter No. IRC 4658 of 2002

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

Application by the Industrial Registrar of New South Wales for contempt orders in Matter Nos IRC 5785 of 2001 and IRC 5786 of 2001.

JUDGMENT OF HAYLEN J

[2003] NSWIRComm 388

1 I have had the opportunity of reading the judgments of Marks J and Boland J in this matter but unfortunately I am unable to agree with their approach to the charges contained in paragraphs I and J. Although I agree with Marks J regarding the outcome in relation to the charges contained in paragraphs G & H, I have additional reasons for reaching the same conclusion. I am in agreement with the other members of the Court in dismissing the charge contained in paragraph F.

2 Having considered a wide range of authority in relation to a charge of contempt, I regard the following propositions as having particular relevance to the present case:

(a) criminal contempt involves an interference with the due administration of justice either in a particular case or more generally as a continuing process. The interference with the administration of justice may take the form of frustration of the attainment of justice either in particular proceedings or "by deterring other people from having recourse to courts of justice in the future for the vindication lawful rights or for the enforcement of the criminal law (per Lord Diplock in Attorney-General v Leveller Magazine (1979) AC 440);

(b) contempt of court is the generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempts of court may thus take many forms (per Lord Diplock in Attorney-General v Times Newspapers (1974) AC 273 at 387);

(c) conduct in relation to a specific case which tends to undermine the due administration of justice by the court in which the case would be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also the particular interests of the parties to the case (Attorney-General v Times Newspapers);

(d) the due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide according to law. (Attorney-General v Times Newspapers at 307-309);

(e) in the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted (per Lord Morris in Times Newspapers at 302);

(f) it is neither desirable or possible to frame any exact or comprehensive definition or to formulate any precise classifications of behaviour which constitutes contempt - there must appear to be a real and substantial danger of prejudice to the trail of the case or to the settlement of it (Lord Morrison in Times Newspapers);

(g) it is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice (per Jordan CJ in Ex parte Bread Manufacturers' Ltd (1937) 37 SR (NSW) 242 at 249);

(h) it is not necessary to determine whether there was an intention on the part of the respondent to interfere with the proper administration of justice. It is sufficient for the applicant to prove to the requisite criminal standard that the conduct complained has, "as a matter of practical reality" the impugned tendency to interfere with the course of justice in the context of the proceedings (per Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22);

(i) improper pressure will include the tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for "interference in the litigant's freedom to conduct the litigation as he or she chooses". This will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. It is not necessary that there be demonstrated actual interference with the conduct of the proceedings by a litigant but a tendency to so interfere (Harkianakis v Skalkos);

(j) pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper (Harkianakis at 30);

(k) a superior court has the power and the duty to secure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction - it may be necessary for this purpose to make orders for the protection of those relevantly involved in proceedings before the court. An attempt, by threat of a detriment, to deter a person from enforcing a right which he has, which likewise may, in appropriate circumstances, be punished as contempt (per Mahoney JA in John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465 a 471);

(l) contempt by way of interference with the due administration of justice is another and separate branch of the law of contempt. Contempt by way of interference with the due administration of justice is an expression which is a convenient label used to gather together a number of otherwise loosely connected legal classifications, the common thread of which may be described as the due administration of justice but the breach may manifest in several ways (per Kirby P and McHugh JA in Fraser v The Queen (1984) 3 NSWR 212 at 231);

(m) the cases have recognised a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material. The gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who wish to seek curial vindication of their rights. The gravamen of this particular type of contempt is the potential interference of the litigant's freedom to conduct litigation as he or she chooses. The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate and to negotiate rather than litigate a settlement of the dispute, and/or withdraw an action after setting it in motion. It follows that improper interference with negotiations towards a settlement of a pending suit is no less a contempt of court than interference, physical or moral, with a procedural situation in the strictly forensic sense (per Mason P in Harkianakis);

(n) improper pressure or improper interference, used in some of the authorities to identify cases where contempt is committed by attempt to influence or deter a party, has the disadvantage of a degree of imprecision. The intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where such an intention is not shown the question whether any pressure was or was not improper, may be the crucial issue (per Burchett J in Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354 at 362);

(o) the correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate (Wilshire-Smith v Voltino Bros Pty Ltd (1993) 41 FCR 496 at 505);

(p) in assessing whether the requisite degree of inhibitation might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regards as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective (per O'Loughlin J in Wilshire-Smith at 505);

(q) the gist of the accusation must be made clear to the person charged, although it is not always necessary to formulate the charges in a series of specific allegations (Coward v Stapleton (1953) 90 CLR 573 at 579-580);

CHARGE F

3 In relation to charge F, I agree that the letter to the "stakeholders" did not have the tendency argued for by the Registrar. While the language may have expressed resentment at the course adopted by the applicants, it did not venture into the territory of impermissible pressure. In particular, I concur with the views expressed in paragraphs [55] to [57] in the judgment of Marks J.

CHARGES G & H AND THE APPROACH TO CONTEMPT

4 The charges contained in paragraphs G and H have been taken together and I concur with what has been stated by Marks J in paragraphs [65] and [66]. Because the approach which I have adopted is also relevant to paragraphs I and J, there are additional reasons which I find persuasive whereby the charges set out in paragraphs G and H are made out.

5 In these matters it is appropriate, in my view, that the Court should concentrate upon the substance of the alleged contempt and the thrust of the case brought against the respondent. As pointed out in Chang Hang Kiu v Piggott [1909] AC 312 at 315, it is the gist of the accusation that must be made clear to the person charged although it is not always necessary to formulate the charges in a series of specific allegations (referred to in Coward v Stapleton (1953) 90 CLR at 580). Similarly, in Fraser v The Queen [1984] 3 NSWR 212, Mahoney JA observed that the time had passed when matters of contempt should be dealt with upon what are essentially technical or procedural grounds: contempt is a serious charge and should be dealt with according to its substance and not its form. His Honour accepted that there was a role for technicalities and procedural matters in the criminal law and like proceedings but rules and proceedings were not ends in themselves: they had the function of ensuring that the matters of substance to be dealt with, were dealt with, with fairness to the parties involved (see also WorkCover Authority of New South Wales v Lucon (Australia) Pty Ltd (2002) 112 IR 332, [60] & [66] in relation to the commencement of prosecutions under the Occupational Health and Safety Act, 1983). It is clear that what is essential for a fair trial of an allegation of contempt is that the specific offence charged is succinctly stated and sufficient opportunity given to answer the charge (MacGroarty v Clauson (1989) 167 CLR 251 at 255). It is also to be remembered that in Witham v Holloway (1995) 183 CLR 525 (at 534) while the Court held that all charges of contempt must be proved beyond reasonable doubt, the Court went on to say:

However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charg .

6 In my view, the substance of the charges are relatively clear notwithstanding the somewhat unusual form of drafting further and better particulars adopted for the Registrar. What is important, to my mind, is that the Court should not be led into dealing with the charges on the basis of a pleading point.

It has been pointed out that the amended charges referred to conduct tending to interfere with the course of justice but that, for example, in charge G the particulars referred to conduct calculated to interfere with the administration of justice. I do not understand how the particulars can be treated as rising higher than the charge. However, it is to be remembered that the motion was amended, but the particulars frequently used the term "calculated to interfere with or obstruct the due administration of justice" when the amended Motion framed each charge by reference to "a tendency to interfere with the administration of justice". It may be that these particulars were supplied by reference to the words used in the request rather than by reference to the terms used in the amended Motion.

7 Alternatively, it may be said that in relation to charges G, H and I where the further particulars refer to the respondent acting in a manner calculated to interfere with the administration of justice, the word "calculated" is not to be taken as the same as "intended" but is taken to mean that when viewed objectively, the relevant conduct is "likely" or "has the tendency" to prejudice or interfere (Hunt v Clarke (1889) 58 LJ QB 490 at 292; Bell v Stewart (1920) 28 CLR 419 at 429-432; Commercial Bank of Australia Ltd v Preston (1981) 2 NSLR 554 at 558). Having regard to the terms of the amended Motion, the charges are to be considered, therefore, on the basis that they allege a tendency to interfere with the administration of justice and the further particulars supplied are to be understood to particularise such a tendency.

8 As indicated above, I have approached the remaining charges on the basis of their substance and the fact that the substance was made clear to the respondent. Each paragraph sets out the charge and the relevant facts. In some respects the request for further and better particulars strays into a request as to how the charges formulated, as a matter of law, are made out rather than requiring particulars of the facts and circumstances relied upon by the Registrar.

Thus, in charge G it is alleged that the respondent required the applicants in the substantive proceedings to attend on the respondent to answer allegations made in the Reply to the Summons for Relief and thereby acted in a manner which had a tendency to interfere with the administration of justice. Paragraph H alleges that the respondent threatened the applicants in the substantive proceedings with detriment if they failed to answer allegations made in the Reply to the Summons for Relief and thus acted in a manner which had a tendency to interfere with the administration of justice. In both cases the essential facts are set out in the charge: the further particulars nominate the direction to attend a meeting, the direction to reply to the allegations, the absence of credible denials and the failure to attend being regarded as a serious disciplinary issue, as being calculated to interfere with the administration of justice by placing unreasonable pressure on the applicants to settle or compromise the proceedings, to withdraw the proceedings, to force them to comply with an instruction which was not authorised by any Court order and to embarrass the applicants in the substantive proceedings. For reasons which I develop in the following paragraphs, I have found the remaining charges made out against the respondent, having regard to the matters set out in each individual paragraph of the relevant charge. If, however, the charges are to be properly limited by the further and better particulars, then, in my view the charges are still made out. I have spent some little time dealing with these issues as I regard the method of pleading concentrated upon during argument as causing considerable difficulty to the Court in circumstances where I am firmly of the view that it is the substance of the matter which is to concentrated upon and that the substance of each of the remaining charges has been made out.

9 On what might be referred to as a my primary approach to the charges contained in paragraphs G and H, the requirement to attend on the respondent and answer the allegations made in the Reply to the Summons for Relief and the threat of detriment to the applicants if they failed to answer allegations made in the Reply, had the tendency to interfere with the administration of justice because this very process was the subject of the s 106 proceedings and the expedited conciliation to be conducted by Schmidt J. The applicants at the time these directions were given were still employed, although their employment was obviously under close scrutiny by the respondent. The applicants had commenced proceedings in the Commission directed at controlling the publication of adverse statements about their alleged conduct, and were seeking to regulate the investigative process to be used by the respondent by the adoption of protective measures in relation to the supply of particulars, the method of investigation and enquiry and the opportunity to fully respond to all the allegations before any action against them was determined.

10 These charges could not be described as simply dealing with a direction to attend a meeting and to answer questions. The applicants were placed in the position where their failure to attend the meeting was to be regarded as a serious disciplinary issue (that is, their jobs were at risk) and they were required to participate in a process of investigation and interrogation relating to the allegations against them which was at the heart of their applications seeking to regulate that very process in a way which would be fair to them. By being directed not only to attend under threat of losing their employment but also to answer again allegations which had been made against them and to participate in the employer's investigation, rendered otiose the relief sought in the Commission. This effect cannot be ameliorated by suggesting that the applicants could still proceed with their claim for appropriate notice: the applicants were seeking orders for a fair process so that they could ensure their employment in circumstances where the Commission could not direct their re-employment in s 106 proceedings. The significance of this separate and different form of relief cannot be ignored. In a very real sense the applicants were faced with participating in the meeting and the investigation and thus effectively losing the opportunity to regulate that process by orders of the Commission or refusing to attend and losing their employment, which is precisely what occurred. Once they attended the meeting and participated as directed, they lost the right to conduct their litigation as they saw fit: it is not fanciful to conclude that the directions given by the employer were likely to raise in the minds of the applicants the futility of continuing with central aspects of their application in the Commission.

11 If the view is taken that charges G and H are limited by the further and better particulars, then the matters referred to in the previous paragraph constitute improper pressure on the applicants in the circumstances of this case.

12 Regard needs to be given to the circumstances which developed over a relatively short period of time in order to assess the alleged pressure that was applied to the applicants. The applicants were removed from duty on 1 August 2001 but remained on pay: they filed their s 106 Summons for Relief on 30 August 2001. The gravamen of the proceedings so filed was the applicants' desire to have a process adopted which: protected their employment during the respondent's investigation; gave them an opportunity to properly defend themselves against appropriately particularised allegations; and prevented harmful publication of the allegations during the process. The last part of the claim was effectively a prohibition on dismissal unless two years' salary was paid as reasonable notice. At this stage, being still employed, the clear focus of the proceedings was upon the applicants' desire to protect that ongoing employment and to ensure fair procedures were adopted during the respondent's investigation - the fallback position was to seek variation of the contract to require payment of two years' salary as reasonable notice if the applicants were terminated.

13 The respondent attempted to persuade the applicants' lawyers that the process commenced in the Commission should be "put on hold" while the investigation was completed, including the questioning of the applicants. Not surprisingly, this approach was rejected by the solicitors acting for the applicants - it was this very process that they were trying to regulate through the s 106 proceedings. Having been rejected, the respondent put in train a process to proceed with the investigation, a process that treated the proceedings in the Commission as an irrelevant consideration. Further, the direction to attend the meeting given to each applicant required them to respond to allegations set out, I infer, for the first time in the respondent's Reply to the Summons. This process was adhered to by the respondent without variation, even though:

(a) the purpose of receiving a reply to the allegations had been met by the applicants filing and serving their Response to the Reply the day before the first meeting was called and three days before the second meeting was held;

(b) the solicitors for the applicants reminded the respondent's solicitors that a full Response had been filed, that the meeting was an abuse and that, if it was not called off, an approach would be made to the Court for appropriate directions;

(c) shortly after the respondent filed its Reply, the applicants had obtained an expedited hearing of the conciliation which was set down for 26 November 2001, some five weeks after the Reply had been filed and a little over three weeks after the meetings which were called by the respondent. There is nothing in the evidence to suggest that, on the application for expedition, the commission was informed that this timetable would inhibit the proper administration of the Centre. This is, in any event, difficult to believe as the applicants had been removed from their positions albeit with pay;

(d) the respondent at no time in the correspondence with the applicants or their solicitors acknowledged the filing and serving of a full Response to the allegations. The respondent does not appear to have taken time to consider the implications of the Response for the course it had decided to pursue;

(e) the respondent at no stage proffered an explanation in the correspondence for requiring the meeting when the conciliation was now only weeks away and it had the applicants' detailed Response to the allegations. The applicants had been removed from their positions and the respondent was free to operate the Aged Care Centre in any way it chose. There was no suggestion in the evidence that the Response was inadequate. What then was the purpose of the meeting called by the respondent?

14 Viewed in this light, it is clear that the applicants were being put under pressure by the course adopted by the respondent. That pressure was at least likely to raise in the minds of the applicants: the apparent futility of proceedings where the central purpose of the claim concerned a fair and proper procedure to govern the investigation; whether it may be best in the circumstances to settle or compromise the proceedings, perhaps on an unsatisfactory basis since their employment was now under direct and immediate threat ; whether to withdraw the proceedings in the hope of saving their jobs or avoiding further pressures from the respondent. If the appropriate test is an objective one, then the actual feelings and concerns of the applicants at this point are irrelevant. This must also follow if the purpose of contempt proceedings of this nature is to protect the status and authority of the Court rather than bestow a benefit or form of relief upon the applicants. Approached in this way, litigants in the position of the applicants should not be subjected to such pressure while proceedings were on foot and were soon to be heard in a relevant sense. The effect of the conduct, as a practical reality, had the tendency alleged.

15 In Harkianakis, Mason P drew attention to a particular type of contempt involving the potential interference in the litigant's freedom to conduct litigation as he or she chooses, and how alternative dispute resolution had recognised that settlement of litigation was as much an aspect of the curial process as "combat to the bitter end". Here, there was improper interference with negotiations towards a possible settlement of a pending suit. The conciliation process under s 109 of the Act offered all the parties an opportunity, with the assistance of a member of the Commission, to reach agreement as to the process to be adopted in dealing with the allegations. That was clearly an important part of the case being pursued by the applicants and it was quite possible that some agreement might have been reached in conciliation whereby a process was adopted to govern the conduct of the investigation to be carried out by the respondent. Such an agreement may or may not have left on foot the issue of whether there should be a variation to the contract to provide a minimum period of notice before termination, but at this early stage that was clearly a secondary although nonetheless important consideration.

16 Further, the role of conciliation in the legislative scheme cannot be ignored in this context. Section 109 imposes on the Commission a statutory duty to conciliate and to endeavour, by all means considered necessary and proper, to settle the case. It is an extraordinary obligation, but an understandable one having regard to the nature of the Commission and the width of cases brought under section 106.

This statutory duty was substantially frustrated when the respondent directed the applicants to attend the meeting under threat of dismissal and to answer the allegations made against them by reference to the contents of the respondent's Response: that frustration of the statutory duty was complete when the respondent dismissed the applicants before the date set to deal with the conciliation. There is a

distinct public interest issue arising from such conduct and its capacity to frustrate the statutory duty imposed upon the Commission under s 109.

17 To the suggestion that the respondent's conduct did not, as a matter of practical reality, have a real and definite tendency to interfere with the course of justice, I have regard to Lord Diplock's statement in Attorney-General v Times Newspaper that contempt of Court may take many forms. It has also been accepted that conduct will amount to improper pressure if it resulted in a tendency to deter applicants from continuing with litigation or interferes with a litigant's conduct of litigation as he or she sees fit. In a similar vein, in the Bread Manufacturer's case, Jordan CJ spoke of pressure in terms of ensuring a fair trial of the substantive proceedings. It is accepted that the conduct is to be considered in the total context of the matter. However, a party has a right to bring an action and to negotiation a settlement. In the present case, the applicants' capacity to negotiate a settlement about the course of the respondent's investigation before determining its disciplinary inquiry was totally lost: so was the applicants' freedom to have that issue decided at trial if conciliation failed. This interference with the course of justice was not remote in any sense but had a direct and fundamentally adverse effect on the manner in which the applicants could conduct their case and amounted to improper pressure.

18 The importance of these points cannot be overcome, in my view, because a direction from an employer to attend a meeting over disciplinary matters which were employment related was a lawful direction. The courts have long understood that even lawful conduct can amount to contempt. Nor, in my view, is it a likely answer to say that a litigant of ordinary fortitude, being closely advised by experienced solicitors, could not have felt under pressure to settle or compromise or withdraw their claims against the respondent simply because they were directed to attend a meeting to answer allegations under a threat of possible dismissal. Both parties were represented by well resourced solicitors but there is nothing here to suggest that the applicants were case hardened litigants or accustomed to the pressure of litigation and threats of termination because of any relevant, perhaps industrial, experience. These applicants were directed to attend a meeting and answer allegations which they had already answered by filing a Response in the Commission, and were informed that if they did not attend and if they did not adequately answer the allegations their employment could be terminated. At the point of receiving this direction as set out in the letters, the applicants, on any assessment, must have been concerned that the core purpose of their litigation was about to be undermined and set at nought. In those circumstances, it is entirely realistic that such a litigant would feel under pressure to salvage something from the litigation by either compromising on a basis that was clearly unsatisfactory or withdrawing or radically confining the litigation to a case simply about notice. In the field of industrial relations, I find nothing fanciful or remote about the respondent's direction bringing to bear such pressure. Neither these applicants nor litigants of ordinary fortitude would receive such a directive backed by the support of the solicitor for the respondent with a feeling of equanimity based on the notion that the threat might be mere puffing and that the detriment may not be a reality. This was clearly so after the respondent filed its Reply in the Commission setting out serious allegations against the applicants. It is quite understandable that applicants in such a position would feel both alarmed and pressurised at this point.

19 It is further suggested that because the applicants had already commenced their s 106 proceedings that they could hardly have been pressurised by the directive from the respondent to attend the meeting and to make satisfactory answers: the suggestion is that they were well placed then to either decide to attend the meeting or to continue with their litigation. Again the difficulty with this approach is that the core relief sought in their s 106 application was in danger of being destroyed if the applicants attended or failed to attend the meeting. If they attended the meeting and failed to adequately answer again the allegations raised against them, they could find themselves terminated before the disciplinary process could be regulated either through the conciliation or in the final hearing of the s 106 case.

CHARGE 1

20 The charge in paragraph 1 specifies that, in the period between 10 October 2001 and 10 November 2001, the respondent, in dismissing the applicants for failing to attend and answer allegations made in the Reply to the Summons for Relief thereby acted in a manner which had a tendency to interfere with the administration of justice, being the two proceedings filed before the Commission and seeking relief under s 106 of the Act. In further particulars, it was said that the act of dismissing the applicants was calculated to interfere with the due administration of justice "in the manner set out in paragraph 8 above". In turn, that was a reference to, arguably, the act of dismissal being calculated to place unreasonable pressure on the applicants to settle or compromise the proceedings, to withdraw the proceedings, to force them to comply with any instruction which was not authorised by any Court order and to embarrass the applicants. It was accepted by counsel for the Registrar that the charges were confined by the terms and the particulars supplied. Further, it was accepted by counsel for the Registrar that this was not a charge that, in dismissing the applicants there was an interference with the course of justice, but rather, in a more complex way, the act of dismissal was calculated to place unreasonable pressure on the applicants to settle or compromise the proceedings or withdraw the proceedings to force the applicants to comply with a direction that was not an order of the Court and embarrass them.

21 For the reasons set out in relations to charges G and H, once it is accepted that the letters directing attendance at the meeting and answering the allegations amounted to unreasonable pressure as particularised, then the position is a fortiori in relation to the act of dismissal. Once the applicants were dismissed, the core relief which they had sought, and particularly so by way of conciliation, had disappeared. The act of dismissal thereby had a clear tendency to interfere with the course of justice by placing pressure upon the applicants to either discontinue their proceedings or to compromise them in a way which was unacceptable.

22 It is suggested in relation to this charge, that in dismissing the applicants, quite contrary to the notion of imposing pressure on the applicants, it left them in the position where they had no alternative but to press ahead with their claims. It is an integral part of this approach that the substantive claim was really one for adequate notice and that such a claim could still be fully dealt with in the s 106 proceedings. As indicated earlier, I am unable to accept such a categorisation of the applicants' claims: at this early stage where they were still in employment and seeking to retain that employment, the focus of their case was to secure procedures which safeguarded that position and left them in the best position to defend the allegations made against them. Once they were dismissed, this central part of their s 106 claim was lost and was not capable of being dealt with by the Commission. By dismissing the applicants and thus destroying the core relief sought in the s 106 proceedings, the respondent's conduct had the tendency to interfere with the course of justice in the manner just described and secondly, brought pressure to bear on the applicants in circumstances where their termination had rendered core elements of their case a futility - clearly, this was pressure to have them either cease their litigation or fundamentally compromise it in a way which prevented them from exercising the freedom to conduct their litigation in a manner in which they saw fit.

CHARGE J

23 Lastly, I turn to the charge contained in paragraph J. Exhibit 2 to Mr Lund's affidavit of 13 June 2002 was a letter sent to the solicitors acting for the respondent dated 31 October 2001. The terms of that letter have been set out in the judgment of Marks J. In summary, attention was drawn to concerns that the proposed interview of the applicants would constitute an abuse of the ordinary court process and an alternative process was proposed. Further, given the circumstances, the respondent's solicitors were advised that if a response was not received within seven days regarding the alternative approach or if the respondent made any further direct approaches to the applicants to attend interviews " ... then we will have no alternative but to seek to have the matters re-listed before Her Honour Justice Schmidt with a view to having the Court make directions as necessary to prevent abuse of its process". At the time this letter was written the conciliation hearing was less than four weeks away. In terms, the letter did not specify what relief would be sought but by highlighting that the course proposed by the respondent was an abuse of process, it may have been open for the applicants to seek an injunction restraining the respondent from requiring the attendance of the applicants at a meeting until the conciliation hearing was listed (see Sea Acres Rainforest Centre Pty Ltd v The State of New South Wales (2001) 109 IR 56; Selman v Sweet [2003] NSWIRComm 14; Gough & Gilmour Holdings Pty Ltd & ors v Caterpillar of Aust Ltd and anor (No 9) [2001] NSWIRComm 260). At this stage the applicants were still in employment and no issue of specific performance of a contract of employment could arise. Even where the spectre of specific performance is raised it will not automatically operate as a bar to the granting of an injunction to restrain a breach of contract of employment so long as the action is taken promptly and there are special circumstances warranting the action (Gregory v Phillip Morris Ltd (188) 80 ALR 455; Hill v Parsons [1972] 1 CH 305; Turner v Australasian Coal and Shale Employees' Federation (1984) 55 ALR 635). The application for such orders may, in any event, have brought forward the conciliation in relation to the process to be adopted in conducting the investigation. All these opportunities were lost because of the pre-emptive action taken by the respondent.

24 It was pointed out for the respondent that there was a fatal flaw in the charge because the applicants were not dismissed "for the reason they indicated that they were approaching the Industrial relations Commission for orders" and, indeed, in the particulars supplied it was accepted that the letter of termination set out the reasons for that action, namely, the failure or refusal to attend the meeting and to give full answers to the allegations made against the applicants. The particulars, however, stated that the dismissal of the applicants had the tendency to interfere with the due administration of justice by depriving the Industrial Relations Commission of making orders it might have thought appropriate in all the circumstances. In this way the thrust of the charge was clarified. In Fraser v The Queen, Mahoney JA observed that the time had passed when matters of this kind should be dealt with upon what are essentially technical or procedural grounds: contempt was a serious charge to be dealt with according to its substance and not the forms (at 234-5).

25 In Fraser, Mahoney¸JA was in the minority in relation to whether the proceedings for contempt should be dismissed: his position was that there should be a new trial.

The authorities he referred to focusing on the substance of the case were not called into question by the majority, although they thought compliance with the rules of court in cases of summary proceedings for contempt were imperative. MacGroarty dealt with a specific statutory offence of contempt under the Queensland District Court Act. The High Court found that the statutory provisions were exhaustive of the powers of a District Court judge to punish for contempt and that any such charge had to reflect one or more of the elements set out in the statutory scheme. In this context, the High Court referred to what was involved in a charge of common law contempt: it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations provided that the "gist of the accusation" is made clear to the person charged (see Chang Hang Kiu v Piggott; Coward v Stapleton)

26 The present proceedings are brought pursuant to the provisions of s 180 of the Industrial Relations Act 1996. That is a general provision empowering the Commission in Court Session to deal with a contempt and making a person in contempt of the Commission guilty of an offence. By s 153(2), proceedings for contempt are to be dealt with by a Full Bench of the Commission in Court Session and by s 164(2) the Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission. By s 180(2), conduct is contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court.

This statutory scheme is not as circumscribed as that dealt with in MacGraorty; it follows that the charges as framed and further particularised must inform the recipient of the substance or the gist of the alleged contempt and sufficient opportunity must be given to answer the charge.

27 It is open and appropriate therefore to approach the charge in paragraph J as being an allegation that there was a tendency to interfere with the due administration of justice by depriving the Commission of the opportunity to make orders that may have been appropriate in all the circumstances. The cases referred to earlier in this judgment emphasise the need for unhindered access to the courts for the determination of legal rights and liabilities and to ensure that there will be no usurpation of the court's function by any other person. Here, the respondent was on notice that the applicants would not consent to the substantive proceedings being placed on hold while the internal investigation was completed and that, if the respondent persisted with the investigation, the applicants would relist the matter because of a perceived abuse of process. Before that step of relisting could be taken, the respondent terminated the employment of each applicant. The Commission possessed no power to re-instate an employee under s 106. In a similar way as described in relation to charge I, this action by the respondent placed improper pressure on the applicants - it had the tendency to deter these individual litigants and litigants similarly placed from seeking curial vindication of their claim and fundamentally struck at their right to bring a full case before the Commission. Considering all the surrounding circumstances, this charge is also made out.

28 Against this approach it is said that, effectively, the applicants' solicitors failed to move with sufficient speed to have the matter relisted before the Commission once it was clear that the meetings were to take place. While that criticism may have some substance, given the terms of the correspondence which had passed between solicitors, it is likely to be the case that the applicants' solicitors expected to be informed of action proposed to be taken by the respondent and informed prior to that action becoming effective. It is to be remembered at this time that there was no urgency about the conduct of the respondent's undertaking because both applicants had been removed from active duty. The applicants had sought an expedited conciliation just a few weeks prior to these letters being forwarded and there had been no suggestion that these steps would be taken prior to the expedited conciliation. It was undoubtedly the case that a reason for expediting the conciliation was to permit the question of procedures for the respondent's investigation to be finalised or at the very least discussed prior to that investigation reaching the stage of interrogating the applicants and prior to determining their employment status.

29 It is then said that cases such as Webster v Bakewell Rural District Council Pty Ltd [1916] 1 Ch 300 and Catalfamo v Hersfield Holdings Pty Ltd (1981) 52 FLR 343 are relevant to the extent that the respondent was acting only to protect its legitimate interest and as such there could be no contempt. Both cases arise in quite limited factual circumstances which do not easily transfer into a general principle which may be of assistance in the present case. While, in a general sense, both cases may be said to stand for the proposition that there will be no contempt if a person acts legitimately to protect its own interests, the more pertinent inquiry in the present matter is what evidence there was that the steps taken by the respondent were steps taken to protect its interests. As I have pointed out earlier, the applicants had been removed from their employment although still paid but they were no longer performing duties in the Aged Care Centre operated by the respondent. An application for expedition of the conciliation had been granted in circumstances where there is no suggestion that any particular interests of the respondent was being adversely affected. Once the applicants were removed from their duties the only adverse consequence for the respondent was their own undertaking to continue them in paid employment: there is nothing in the evidence to suggest that the respondent had a legitimate interest to protect by dismissing the employees rather than simply removing their entitlement to pay while the issue of the process involved in the investigation of the disciplinary allegations was being sorted out in the Commission. There could be little doubt that the respondent perfectly understood that by moving to dismiss the applicants that a substantial part of the applicants' case before the Commission would be rendered nugatory. The respondent, as has already been observed, was represented by well resourced solicitors and the effect of the dismissal could not have been misunderstood by the respondent's legal advisors or the respondent itself. There was nothing in the way of performance of duties or in any other way suggested by the respondent in the evidence to suggest that while the applicants were no longer performing duties, that there were any continuing serious matters of patient care, corporate governance and financial management arising from their duties, nor was there any interference with the right of the respondent through the interim board to run the facility and to exercise its public duty to those in their care. Resort to this language by solicitors acting for the respondent was mere camouflage for what was otherwise clearly a pre-emptive strike by the respondent against the applicants and the case which they wished to pursue in the Commission.

In my view, the seriousness of the respondent's conduct cannot be excused by the fact that perhaps only interlocutory orders preserving the status quo until the conciliation could have been obtained by the applicants from the Commission. Such interlocutory orders would, at least, have preserved the core relief being sought by the applicants and given the Commission the opportunity to exercise its statutory obligation to conciliate the case.

30 In Webster v Bakewell the tenant wished to engage in litigation with the Local Authority about interference with the boundaries of the property tenanted when the primary interest was that of the landlord. Ultimately, it was held that it was the landlord's interest that determined the issue because the landlord did not wish to engage in litigation with the Local Authority. It seems to me that this is a rather special case that has little or no direct relevance to the present proceedings. It is well accepted that action can be taken and a party may conduct itself in a way which is in accord with its legal rights but nevertheless be in contempt of court. In Bakewell, the interests of the landlord in terminating the tenancy was held to be conduct in protection of the landlord's legal rights. Notwithstanding these matters, it is difficult to understand what "rights in property" were being protected, and none were identified in terms. There is no similar analysis available of the evidence which would lead to a similar result in the present case. This may be one of those cases referred to by Kirby J:

It is still frequently the case that decisions centuries ago in England are accepted as stating the law for modern Australia, without a moment's hesitation or thought concerning the changed social conditions and community values since those decisions were handed down. (The Australian, 3 October 2003, p 11)

The Catalfamo case is another particular example where the court determined that, although the respondents took risks and may have committed a criminal offence by forcibly entering the premises there was no contempt where the lessees of the shopping complex were claiming damages under s 82 of the Trade Practices Act and an order for variation of the leases. On one view of it the remedies basically remained intact. It was said that the forcible entry by the landlord rendered the premises unusable by the lessees but that does not suggest that damages or some other order may not have given an effective remedy to the lessees. The case is one confined to its own facts and is of no assistance in the present matter.

31 For the reasons I have set out, I would find the respondent guilty of charges G, H, I and J: I would dismiss charge F.

32 The orders I would propose are:

1. The respondent is found guilty of charges G, H, I & J.

2. Charge F against the respondent is dismissed.

I otherwise concur with the orders 3, 4 and 5 proposed by Marks J at paragraph [83].

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LAST UPDATED: 20/11/2003