Abigroup Contractors Pty Ltd v Carnegie
[2013] FCCA 1099
•16 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABIGROUP CONTRACTORS PTY LTD v CARNEGIE | [2013] FCCA 1099 |
| Catchwords: PRACTICE & PROCEDURE – Orders – construction and interpretation – question of ambiguity – appropriate process of correction in absence of ambiguity – slip rule. PRACTICE & PROCEDURE – Contempt of Court – alleged disobedience by failure to comply with injunctive orders – failure to incorporate penal endorsement upon form of order – exercise of discretion to waive noncompliance – circumstances justifying exercise of discretion to waive compliance – defect in order by reference to non-existent instrument – fatal defect. |
| Legislation: Federal Circuit Court Rules2001 (Cth), rr.1.06, 16.05, 19.02, 29.07, 29.08 |
| Adams v Lambert [2006] HCA 10 Doyle v Commonwealth (1985) 156 CLR 510 Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118 Re Honourable John Colinton Moore, the Minister of Business and Consumer Affairs v Tooheys Limited [1981] FCA 121 Ryan v Wright [2004] NSWSC 749 Witham v Holloway (1995) 183 CLR 525 Construing Court Orders 1998 (72) ALJ 117 |
| Applicant: | ABIGROUP CONTRACTORS PTY LTD |
| Respondent: | ROBERT CARNEGIE |
| File Number: | BRG 714 of 2012 |
| Judgment of: | Judge Burnett |
| Hearing dates: | 11, 12, 13 February 2013 and 8 May 2013 |
| Date of Last Submission: | 8 May 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 16 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Murdoch SC |
| Solicitors for the Applicant: | Minter Ellison |
| Counsel for the Respondent: | Mr P. Morrissey SC Mr M. Healy |
| Solicitors for the Respondent: | Slater & Gordon |
ORDERS
That the application for contempt filed on 4 October 2012 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 714 of 2012
| ABIGROUP CONTRACTORS PTY LTD |
Applicant
And
| ROBERT CARNEGIE |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 4 October 2012 the applicant, Abigroup Contractors Pty Ltd, seeks orders that the Fifteenth Respondent to the principal application, Robert Carnegie, be punished for contempt pursuant to r.19.02 of the Federal Circuit Court Rules2001 (Cth) (FCCR). The application includes a schedule listing a statement of charges alleging 54 counts.
Early in the application the applicant informed the Court that it would not proceed with counts 1, 2, 6, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 25, 26, 27, 28, 31, 33, 34, 36, 37, 39, 40, 42, 43, 44, 45, 46, 49, 50, 52 and 54. The applicant not having presented evidence in respect of each of those counts, verdicts of not guilty were entered in respect of each of those counts early in the trial.
The applicant proceeded with the remaining 18 counts, being counts 3, 4, 5, 7, 8, 17, 23, 24, 29, 30, 32, 35, 38, 41, 47, 48, 51 and 53 as alleged in the statement of charges.
By way of background, the Court constituted by Jarrett FM (as his Honour then was) made orders on 5 September 2012 in the following terms,
“2. The following persons be joined as respondents to application number BRG714/2012 as the tenth to sixteenth respondents:
a…
f. ROBERT CARNEGIE (Fifteenth Respondent);
…
3. Until the final determination of these proceedings or further order and pursuant to s.421(3) and s550 of the Fair Work Act 2009, the …fifteenth …respondents be restrained from aiding, abetting, counseling, procuring, inducing, being knowingly concerned or conspiring with any person who is a member of the first respondent and who works at the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012) to contravene the Fair Work Act 2009.
4. Until the final determination of these proceedings or further order and pursuant to ss.417(3), 348 and/or 545 of the Fair Work Act 2009, the … fifteenth …respondents be restrained from:
(i) …
(iv) Organising, encouraging, assisting or participating in a picket line at the entry or exit points of the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012) which has the effect of causing conduct the subject of sub clause e, f, or g herein;
(v) Impeding, hindering or preventing the entry or exit of persons or vehicles to and from the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012);
(vi) Unlawfully counseling or procuring any employee not to work upon the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012);
(vii) Verbally abusing or threatening any person in the vicinity of the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012);
(viii) Placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance or exit to the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012);
(ix) Attending or organising or procuring any person to attend within 100 metres of any entrance or exit to the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012) save for such entry:
i. As may be authorized by law;
ii.For the purpose of using a public road for reasons unconnected with the said QCH Project (as defined in the Further Amended Application filed on 5 September, 2012) ; or
iii. For the purpose of complying with these orders; and
…
5. Until the final determination of these proceedings or further order and pursuant to s.545 of the Fair Work Act 2009, the… fifteenth …respondents be restrained from organising or taking, or threatening to organise or take, or being involved in organising or taking or threatening to organise or take, any action in breach of s.355 of the Fair Work Act 2009 with the intent to coerce the applicant to only engage in independent contractors to whom union based enterprise agreements apply.
…”
The applicant alleges that Mr Carnegie wilfully contravened the Court’s orders and was in contempt of them on the 18 occasions particularised, by either:
a)Attending within 100 metres of the QCH (Queensland Children’s Hospital) Project (on 9 occasions alleged);
b)Organising or procuring others to attend within 100 metres of the QCH Project (on 5 occasions alleged);
c)Using verbally abusive language and or threatening any person in the vicinity of the QCH Project (on 3 occasions alleged); and
d)Threatening a person in the vicinity of QCH Project (on 7 occasions alleged).
It is not in contention between the parties that the applicant seeks to prosecute the application as a criminal contempt. The question of whether it is a civil or criminal contempt is not of moment. The applicant bears the onus of proof in respect of each and every material fact necessary to establish each alleged incident of contempt as particularised in the 18 counts. The standard of proof to be satisfied in respect of each such fact is proof beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525.
Preliminary Points
At the outset, the respondent raised two preliminary points:
a)The order failed to incorporate the FCCR r.29.07 endorsement;[1] and
b)The order was defective for lack of clarity or was ambiguous.
[1] This is commonly referred to as the ‘penal endorsement.’
If the respondent succeeds on either point the application must be dismissed. Accordingly, it is appropriate to deal with these points at the outset.
Failure to incorporate the FCCR r.29.07 endorsement
FCCR r.29.07 materially provides:
29.07 Endorsement on order
If an order requires a person to do, or not to do, an act or thing, whether within a certain time or not, and the consequences of failing to comply with the order may be committal, sequestration or punishment for contempt, the order must carry an endorsement that the person to be served with the order will be liable to imprisonment, sequestration of property or punishment for contempt if:
(a) for an order that requires the person to do an act or thing – the person neglects or refuses to do the act or thing within the time specified in the order; or
(b) for an order that requires the person not to do an act or thing – the person disobeys the order.
In this instance the order omitted the penal endorsement.
The respondent contended that the absence of the penal endorsement was fatal to the application as the rule preserves a “protective balance” with its function being to:
“Enable(s) the person to reflect upon the content of the order, first, the terms of the court’s order containing the obligation to do something, and, second, one of the three possible consequences (committal), that is committal to prison; sequestration of property or punishment for contempt should the person neglect or refuse to do the relevant thing within the time specified in the order…”[2]
[2] Mason v MWREDC Ltd [2012] FCR 1083 at [33].
Counsel for the respondent submitted that the penal endorsement is a crucial component in the process of communicating to a respondent not merely the terms of the order but the specific coercive consequences of a breach. He further contended that there was no power to punish the respondent for the alleged contempt unless the Court exercises its general power to dispense with the rules of court. Accordingly, he argued, the applicant must rely upon that power of dispensation and seek to persuade the Court to exercise that power to dispense with a fundamental protective measure provided by the rules. That application was opposed.
As the respondent’s counsel contends, a consideration of this application must commence from a consideration of the Court’s powers to dispense with the express requirements of its rules: Doyle v Commonwealth (1985) 156 CLR 510. In Doyle (supra) at 517-18 the principle was stated as follows:
“…a judge cannot dispense with the requirements of the Rules of Court unless the Rules give him power to do so, and when a power is expressly conferred on the court subject to a condition, a judge cannot, by relying on inherent powers, escape from the necessity of ensuring that the condition has been fulfilled.”
The Court possesses a general dispensing power conferred by FCCR r.1.06, which provides:
1.06 Court may dispense with rules
(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
It follows that the Court arguably possesses a broad power to waive a non-compliance such as the requirement of FCCR r.29.07 to incorporate a penal endorsement on an injunction order.
The issue in this case concerns the circumstances under which such a power should be exercised and whether it should be exercised in favour of an applicant who has failed to comply with FCCR r.29.07 by omitting to include the penal endorsement on the order, which was allegedly disobeyed.
For the applicant it was contended that the Court could exercise its power under r1.06 on the basis that the absence of the endorsement constitutes a “formal defect or irregularity” and that otherwise it would be in the interests of justice to dispense with the strict requirement of the rules.
The applicant, being the party seeking dispensation, bears the onus of satisfying the Court that the dispensation is appropriate: Re Honourable John Colinton Moore, the Minister of Business and Consumer Affairs v Tooheys Limited [1981] FCA 121. Although dispensation is a discretionary matter, in a case such as this concerning a proceeding for contempt, it would ordinarily only be open where strict conditions are met. Here the respondent denies that the strict conditions are met as he contends that the absence of an endorsement does not constitute a mere “formal defect or irregularity.” Furthermore, the respondent denies that it would be in the interests of justice to dispense with the rules in these circumstances.
The applicant submits that the Court should exercise its discretion to dispense with the rules in the interest of justice, observing that like provisions have been held “[to] provide[s] that proceedings are not invalidated by a formal defect or irregularity unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and that he injustice cannot be remedied by an order of the Court.”[3] It is to be noted that the provision under consideration in that case was s.306 of the Bankruptcy Act 1966 (Cth), as oppsed to the rule that forms the subject of present consideration.
[3] Adams v Lambert [2006] HCA 10 at [18].
The applicant contends that the Court has a broad discretion to waive the non-compliance. In support of its contention it relies particularly on a number of authorities, commencing with the decision of Drummond J in Australian Securities Commission v Macleod (No 1) [1993] 40 FCR 155. That case concerned a prosecution for contempt in respect of disobedience of a number of orders. In particular, one of the complaints involved a “failure to serve on (the respondent) personally a copy of the order endorsed with (the penal endorsement).” In that instance there was no service of the order and it failed to include the penal endorsement. The applicant relied upon then Federal Court Rules (FCR) Order 37 r.2(5) which permitted enforcement notwithstanding service if the person liable was present when the judgment was pronounced. In that instance the respondent was represented by solicitors at the hearing when orders were pronounced. Against that background, his Honour, in considering an application for committal for disobedience, observed at 159:
“An absence of personal service of the order will necessarily mean an absence of personal service of the penal consequences notice referred to in r 2(3) but r 2(5) does not require proof that the respondent has any notice of the penal consequences of non-compliance with the judgment or order sought to be enforced before it can be relied upon to justify the making of a committal order.
However, the absence of notice on the part of the respondent of those consequences, while not depriving the court of jurisdiction under r 2(5) to make an order for committal, would be a discretionary consideration that the court could take into account in deciding whether to order committal where there has not been personal service on an appropriately endorsed judgment or order on the respondent.”
Since that decision, the rules of court have undergone significant revision.[4] From 1 August 2011 the former orders and rules of the Federal Court have been substituted with new rules. The purpose of the revision of the Federal Court Rules was to simplify and restate the former rules. Former FCR Order 37 r.2(3)(1), (2),(3) and (5) have been restated in new FCR r.41.07 and 41.08. Although expressed in more contemporary language, the effect of the new rules does not appear to have materially changed the principal concepts provided under the former rules, namely:
a)The order should carry a penalty endorsement;
b)The order should be personally served;
c)That where a respondent is present at the time of the pronouncement of the order a person may be subject to penalty without service of the order including an order carrying that penalty endorsement.
[4] The Federal Court Rules 1979 (Cth) have been repealed and replaced by the Federal Court Rules 2011 (Cth).
The rules contained within the FCCR are expressed in identical terms to the FCR. Materially, the following rules are commonly expressed:
a)The order is required to carry a penalty endorsement; FCCR r.29.07/FCR r.41.06;
b)The rules require personal service of the order incorporating the penalty endorsement: FCCR r.29.08(1)/FCR r.41.07(1); and
c)The rules provide that if a party was present in court at the time of pronouncement of the order that person is taken to have been served with the order at the time of pronouncement: FCCR 29.08(2)/FCR 41.07(2).
Accordingly, for current purposes the rules then being considered by his Honour are in all material matters similar to the rules now relied upon. The scheme of the rules provided for personal service of an order, appropriately endorsed with the penal endorsement, upon the respondent. A further provision contained within r.2(5) dispensed with the need for service of an order including the penal endorsement if the respondent was present at the time the order was pronounced.
In such circumstances, and in the event of disobedience, the court could proceed to commit or sequestrate assets of the respondent. Against that background, Drummond J considered the significance of the absence of a penal endorsement.
a)The rules require personal service of the order incorporating the penalty endorsement: FCCR r.29.08(1)/FCR r.41.07(1); and
b)The rules provide that if a party was present in court at the time of pronouncement of the order that person is taken to have been served with the order at the time of pronouncement: FCCR 29.08(2)/FCR 41.07(2).
It follows that the approach of Drummond J is open to this Court and, in principle, his Honour’s statements constitute good authority insofar as he discussed the absence of the penalty endorsement. However, his Honour’s remarks must be tempered by the observation that in that instance he was considering the absence of the penalty endorsement in the context of an order made in the presence of a party (albeit represented by solicitors) and not a situation where an order omitting the penal endorsement was ex parte, as is the case here.
Accordingly, a question arises as to whether that circumstance is a significant factor. For instance, is the presence of a respondent in court (personally or by representative) of itself a fact sufficient to put that person on notice of the penal consequences of a non-compliance as opposed to the circumstances of a party who is simply served with an order out of court? Would a person present at the time of pronouncement of an order in fact be on reasonable notice or any better actual notice of the consequences of non-compliance if the order did not carry the penalty endorsement (as was the case here)? Arguably, the rule addresses that matter conceptually by not requiring the penal endorsement when the respondent is in attendance at the time of pronouncement. Is that because the presence of a respondent before a court is of itself sufficient to alert a respondent to the risks of noncompliance? Or does it imply that judges in making orders state the penal consequences of non-compliance?
Therefore while it is correct for the applicant to contend in broad terms that the absence of the penal endorsement gives rise to a discretionary consideration, his Honour’s remarks and the authority of Australian Securities Commission v Macleod (No 1) (supra) are no more than indicative of an approach which might be considered and which supports a general proposition that the discretion is broad.
Likewise, other authority relied upon by the applicant does no more than support the general proposition that the discretion is large with each case being determined upon its individual facts. See for instance the observations of Bowen CJ in Sunibrite Products (Australia) Pty Ltd v Jabuna Pty Ltd (1980) 47 FLR 73 where at [12] his Honour noted:
“…I agree with the submission that the question of compliance with O. 40, r. 13 (3) and the question whether any alleged breach relied upon occurred before or after service of the documents required by O. 40, r. 13 (3) goes to discretion. The reason behind the rule is plain enough. Where the undertaking has not been given personally, particularly where it requires positive acts of compliance, it is most desirable that there should have been brought to the attention of the person sought to be punished for contempt, the precise terms of the undertaking and notice of the consequences of noncompliance (Ronson Products Ltd. v. Ronson Furniture Ltd.(1966) Ch 603; Trade Practices Commission v. C. G. Smith Pty. Ltd (1978) 30 FLR 368. Where this has not been done the court, depending on the circumstances of the particular case, will be reluctant to exercise its power to punish for contempt.”
Like observations were made in other decisions referred to by the applicant, including: Deputy Commissioner of Taxation v Hickey [1999] FCA 259, 42 ATR 229 at 237; Keith Harris & Co Ltd v Bryant (1980) 30 ALR 663 at 665-666; Deverall v Wannunup Development Nominees Pty Ltd (1994) 12 WAR 561 at 564-565.
For the respondent it was contended that authority called for a much stricter approach to the exercise of the discretion. That is to say that the discretion should not be exercised broadly or generally but rather that a court would not ordinarily waive compliance, and that it would “require something more” to persuade it that justice requires dispensing with strict compliance.
In his submission, counsel for the respondent relied particularly on the observations of Ashley and Nettle JJA in Morgan v State of Victoria [2008] VSCA 267, where at [132] their Honours observed:
“In the result, although there is power to dispense with the requirements of Rule 66.10(3), any judge asked to exercise the power should hasten slowly. As Lord Greene MR stated in Gordon v Gordon, a judge faced with such an application should bear in mind that committal is a technical matter and that, as an order for committal affects the liberty of the subject, such rules as exist in relation to committal must be strictly obeyed. A judge faced with such an application would also do well to bear in mind, as his Lordship suggested, that the process of enforcing an order in civil litigation made for the benefit of a party against the other party by committal is a form of execution and, if the moving party fails to comply with the strict rules, that party should ordinarily be the sufferer. Compliance may not be waived unless the judge is satisfied beyond reasonable doubt by admissible evidence that the person charged with the order was well aware of his or her obligations under the order and the consequences of breaching it. Even then, the judge is not bound to waive compliance and, ordinarily it will require something more to persuade him or her that justice requires dispensing with strict compliance.” (Emphasis added)
Counsel for the respondent noted that, in support of their Honours’ observations, they cited with approval remarks made in Gordon v Gordon [1946] P 99 at 103; Clifford v Middleton [1974] VR 737 and Miller v Eurovox Pty Ltd [2004] VSCA 211 at [30]-[31]. In particular, and relevant to this Court as a matter of binding authority, it was contended that in Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 the Full Court of the Federal Court (North, Goldberg and Weinberg JJ) referred with approval to the observations of Kaye J in Clifford v Middleton (supra), they being remarks which were also endorsed by the Victorian Court of Appeal in Morgan v State of Victoria.
It was for those reasons that the respondent’s counsel particularly submitted that what is now required is expressed in the remarks of Ashley and Nettle JJA at [132] that a “…judge is not bound to waive compliance and, ordinarily it will require something more to persuade him or her that justice requires dispensing with strict compliance.” This, he submitted, provides the test that must be satisfied for the exercise of the discretion to waive compliance with the requirements of FCCR 29.07.
In Siminton v Australian Prudential Regulation Authority (supra), the court was considering appeals against orders made at first instance for the fining and imprisonment of the appellant for contempt. From a review of their Honours’ reasons, it is apparent that the appellant did not run his case particularly well before the court at the first instance or, indeed, on appeal. The point relevant to this case, and upon which it appears the appellant enjoyed some success in the appeal, was not alive at the trial and was only enlivened as an appeal point following its identification by one of the members of the Appeal Court. In particular, an issue alive in the appeal which is not a matter relevant now, because of the redrafting of the rules, concerned the power of the court at first instance to impose a fine in circumstances where the powers permitted under the rules were confined solely to “committal or sequestration.” It was in the context of discussion concerning those matters that the court then proceeded from [75] to make the following observation:
“[75] We do not consider that this is an appropriate case whereby where we should exercise the dispensation power given to the Court under O 37 r 2(6). We adopt the observation of Kaye J in Clifford v Middleton [1974] VR 737 at 741:
"’In my opinion, the power to relieve a party from the consequences of non-compliance with the Rules of the Court where the liberty of the subject is in jeopardy should not be exercised unless the evidence shows that the requirements of and purpose for the particular rule have been fulfilled in a manner otherwise than in the form provided."’
Kaye J observed that a similar view had been expressed by Lord Greene MR in Gordon v Gordon [1946] P 99 at 103:
‘Attachment and committal are very technical matters, and as orders for committal or attachment affect the liberty of the subject such rules as exist in relation to them must be strictly obeyed. However disobedient the party against whom the order is directed may be, unless the process of committal and attachment has been carried out strictly in accordance with the rule he is entitled to his freedom"’
[76]As Nettle J pointed out in Primelife Corporation Limited v Newpark Pty Ltd (supra) at [31]:
‘The purpose of the [i]ndorsement is to warn the party of the consequences which might befall him should he fail to perform the act directed."’
There have been a number of cases in which dispensation has been given by a court but in such cases the court was satisfied either that the party alleged to be in contempt was present in court at the time when the order was made (Takhar v Animal Liberation (SA) Inc [2002] SASC 71), or that the terms of the undertaking had been expressly drawn to the attention of the party the subject of the order who had acted on legal advice (Keith Harris & Co Limited v Bryant (1980) 30 ALR 663 at 666) or that there was some evidence from the party alleged to be in contempt which disclosed that he had knowledge of the need to obey the order (Keith Harris & Co Limited v Bryant (supra) at 666). None of those circumstances exist, on the evidence, in the present case.
[77] There is also a suggestion in Deverall v Wannunup Development Nominees Pty Ltd (1994) 12 WAR 561 at 565, that failure to serve an order bearing a notice of the kind required by O 37 r 2(3) might be condoned or dispensed with where the party the subject of the order had made up his mind to ignore the order and defy the court so that service of a properly endorsed order ‘would have been a useless formality"’ However, there is no evidence that this was the situation in the case of the appellant nor are we prepared to infer that he had such an intention having regard to his conduct during the days shortly after he was served with a copy of the order of Sundberg J.
I am clearly bound by the Full Court’s ruling in Siminton v Australian Prudential Regulation Authority (supra) in respect of the approach to this matter. However, I do not agree with the submission from counsel for the respondent that it supports the conclusions relied upon at paragraph [132] of the Court of Appeal in Morgan v State of Victoria that a waiver of compliance would ordinarily require something more to persuade a court that justice requires dispensing with strict compliance. Whether there is a departure between the approach of the Federal Courts and the Victorian Courts is not a matter which I need to resolve. However, their Honours’ approach in part remarked upon in paragraph [132] reveals it as a material consideration for the exercise of the discretion but does not elevate it to a higher or stricter requirement to be satisfied. Additionally, I observe that their Honours in particular noted, citing with approval Gordon v Gordon, that:
“…such rules as exist in relation to committal must be strictly obeyed. A judge faced with such an application would also do well to bear in mind, as his Lordship suggested, that the process of enforcing an order in civil litigation made for the benefit of a party against the other party by committal is a form of execution and, if the moving party fails to comply with the strict rules, that party should ordinarily be the sufferer.”
That is to be contrasted with the situation as illustrated in Seaward v Paterson [1897] 1 Ch 545 where at 555-556 Lindley LJ stated:
“A notice of motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, and a notice of motion to commit a man for contempt of court, not because he is bound by the injunction by being a party to the cause or anything of that kind, but because he is conducting himself so as to obstruct the course of justice, are totally different things. The difference is very marked. In one case the party who was bound by the injunction is proceeded against; the proceedings against him are for the purpose of enforcing the order of the court for the benefit of the person who got the order. In the other case the court will not allow its processes to be set at nought, and treated with contempt. The consequence is that in one case the person who is interested in enforcing the order is enforcing it for his own benefit, while, in the other case, if the order of the court has been contumeliously set at nought, he cannot settle it with the person so acting and save that person from the consequences of his act. The difference between the two kinds of contempt is perfectly well known, although in some cases there may be a little difficulty in saying on which side of the line they fall.”
In that instance, the court was considering an appeal against a contempt conviction recorded against a person who was not the subject of the original injunction order but who acted in disobedience of it with full knowledge of the order. In that context, the court looked beyond the mere question of enforcement, a matter evident in most of the decisions which were referred to in argument, and was concerned as to whether or not the disobedient conduct was “contumeliously set at nought” the orders of the court. That is to say, whether the enforcement proceedings were in the nature of enforcement between the parties or whether they extended to what can be described as relief directed to protection of the institution of the court and of respect for it. It is that purpose which is advanced by the applicant in this application.
In summary, I conclude that the authorities support the following principles:
a)There is a requirement that, in circumstances where the respondent is not present in court, the order served upon the respondent must contain the penal endorsement; FCCR r.29.07.
b)The requirement is not jurisdictional and the court may, in the exercise of its discretion, dispense with the compliance of its rules; FCCR r.1.06.
c)The absence of evidence that the respondent was aware of the penal consequences of non-compliance will not deprive a court of jurisdiction; Australian Securities Commission v Macleod (No 1) (supra) at [162].
d)The discretion to dispense with FCCR r.29.07 is a general discretion to be exercised having regard to all of the circumstances of the case. Relevant matters include:
i)Evidence of positive intention to ignore the order and defy the court such that the service of an order appropriately endorsed would constitute a useless formality is relevant: Deputy Commissioner Taxation v Hickey (supra) at page 237; Deverall v Wannunup Development Nominees Pty Ltd (supra) at 565; Morgan v State of Victoria (supra) at [76].
ii)Evidence of and the need to obey the order is relevant: Keith Harris & Co Ltd v Bryant (supra) at 666.
iii)The circumstances surrounding the granting of the relief suggesting the reason for the failure to incorporate the penal endorsement are relevant: Deverall (supra) at 565.
iv)Whether the conduct of the respondent was flagrant or contumelious: Deverall (supra) at 565; Seaward v Paterson (supra) at 556.
In this case the only evidence adduced was from the applicant. The respondent elected not to give evidence, as was his right, and no adverse inference is drawn from that matter. It follows that in considering whether or not the circumstances warrant the exercise of the discretion to waive the non-compliance, I only have regard to the matters adduced in the applicant’s evidence.
In this case there is no question that the order failed to contain the penal endorsement. In determining whether or not the Court ought exercise its jurisdiction to dispense with the formal requirement for the penal endorsement the following matters are relevant.
Absence of awareness of penal consequences
Although the respondent did not give evidence at the hearing, his views and insights were captured electronically by his use of social media. During the course of the dispute elements within the Construction, Forestry, Mining and Energy Union (CFMEU) maintained a social networking internet page. Mr Carnegie gave a number of interviews to a journalist-like individual who was reporting on the status of the dispute then evident in the vicinity of the QCH site. Those interviews were uploaded onto the website and publicly accessible. A number of those interviews were viewed and transcripts of the interviews were tendered in the course of the application. Mr Carnegie’s remarks in response to various questions address the issue of his awareness of the penal consequences of non-compliance.
Particularly in evidence was an interview provided by Mr Carnegie and uploaded to the internet.[5] A transcript of the interview was prepared and annexed to the affidavit of Toby Walthall filed on 23 October 2012. Materially, the interview included the following conversation:
[5] So I thought, the thing that I am really interested in is the legal issues involved around this with people being served with injunctions and that sort of thing, so could you just go through and tell us what sorts of legal issues you’ve had to deal with your involvement with in this campaign.
BC [Robert Carnegie]: Well look, I’ve been served three times in this dispute at the Queensland Children’s hospital by Abi’s, The Abigroup law firm, Minter Ellison and I believe that I was injuncted by the Federal Magistrates Court some 24 or 25 days ago. However, during, unlike other people, I’m the community protestor and the community convenor. I decided to defy those injunctions because I believe that although I to a degree, believe in the, in a civil society and the rule of law, but then when the laws are unjust and laws are unfair, I believe that you have a moral duty to defy them and so in this case, I believe my moral duty was much higher than a legal, some legalism that hadn’t even been explained to me.
RI: Do you understand a bit more now what those laws were that you were supposedly contravening?
BC: Well no, look, fundamentally what I’ve been advised by others, certainly not by any law firm, is that I’ve, cause I haven’t gone near one, is that the Federal Magistrate put down numerous conditions about how much distance you had to, you could or couldn’t go near the Queensland Children’s Hospital or if you could or could not organise or could or could not talk to workers and all that sort of thing, that’s what I was told through second hand information and the massive, you know, 18 inch, nearly 2 foot high, 2 foot which is what, 60cm high pile of papers that I have been served with over the course of this dispute. I haven’t really wasted my time though going through it. The problem lies in the fact that my understanding that part of the settlement of this dispute is that Abi had dropped all the, any legal processes against any of the workers who went back to work. But they have kept their legal options open against the Unions involved, the organisers that were named in the injunctions and myself and another, good young, working class activist by the name of Dennis Strano.
RI: So what do you think they’re trying to do here?
BC: Well look, I think it’s, that my personal opinion, is that it’s an act of intimidation by Abigroup and their law firm who tried to bring people to heel by the threat of legal action and trying to cripple people by the use of the courts in trying to get them fined out of existence or trying to get their, you know, take whatever possessions people may have by the use of civil, what do you call it in legal terms, I think civil remedies, but we’ll certainly be fighting that one. But as I said before, look, it wouldn’t matter what law or what legal position people have told me during that dispute, is that I was there as a community organiser and unless I had been, the only way that I would not have gone back to the protest line is if I had of been jailed. I wasn’t jailed, so I continued going to the protest line and doing what any good, decent person who believes in a fair and equitable country would be doing, and that was standing beside workers who were battling for equal pay for equal work. So you know, I’m proud of the stand the workers have had and I guess to a lesser degree, I’m proud of myself because I wasn’t, I didn’t let any force intimidate me, including a multi, multi, $100 million legal firm like Minter Ellison and their billion dollar clients like Abigroup have tried to intimidate me out of playing my small rol[e] in the whole process.
…
RI: Ok. Not really asking whether people supported it, obviously there was a lot of support on the site and in the community, I’m just wondering whether the law was supporting you, whether you had the support of the formal laws of the Fair Work Act.
BC: Oh no. No[laughs]. Not at all, the law didn’t, the law wasn’t there as a supportive action, Abi were trying and Abi…
RI: So was this action outlawed by the Fair Work Act?
BC: and we confirm that Minter Ellison were using the law as, trying to use the law as a sledgehammer to break the protest action, but they were singularly unsuccessful in that.
RI: Yep, so this is sort of unlawful activity under the Fair Work Act, is that it?
BC: Well that’s what they claim it to be.
…
RI: Right. What about surveillance, did you experience that?
BC: Surveillance…It was that, look, what I’m, what we’re seeing more of is with right-wing law firms being used by big business to almost fund the dispute. Part of that is that they use personal investigators, and they use overt and covert surveillance to try to build a case of evidence to take to the courts, to grant these injunctions. It’s despicable, it’s completely and utterly against the societal norms but they do it because they have the money, they have the power, they believe that they can completely transgress any moral boundaries in their pursuits of individuals and groups to try to build what I believe are cases built on pillars of salt, that they can go to a Court and get their injunctions to try to prevent people from participating in a, in any role in any sort of protest actions. And that’s why they target individuals, they spend vast amounts of money on it, the whole site was you know, wired with directional and covert microphones, there’s a, it was continually photographed and videoed both overtly and covertly and it was a disgrace to a democratic, a country that’s supposed to have some democratic values, it was more in place of being in East Germany under the Stasi, or being in Pinochet Chile where you’ve got all of those sort of underhanded means were utilised and the only, the only thing that it lacked was a knock on the door ...”
In my view it is plain from this extract of transcript that Mr Carnegie had a broad appreciation of not only the powers of the Court, but also the means by which its powers operated and were enforced. For instance, he recognised the power of the Court to make injunctions, notwithstanding his view that his moral duty was to defy them if he thought that they were unfair or unjust. Furthermore, it was apparent that he understood the coercive powers of the Court in respect of its orders by noting its powers to “get them fined out of existence” and by taking “whatever possessions people may have” by use of “civil remedies.” Later in the interviews Mr Carnegie also made oblique reference to an appreciation of the Court’s powers by observing that “the only way I would not have gone back to the protest line is if I had of been jailed.” He noted that because he had not been gaoled he continued to protest. In my view, Mr Carnegie was well aware of the penal consequences attached to the defiance of Court orders.
Intention to ignore and defy
The next matter concerns evidence of a positive intention to ignore the order and defy the Court, such that the service of an appropriately endorsed order would constitute a useless formality. Again, Mr Carnegie’s interview of 16 October is insightful. As he noted, he had been served with a significant volume of material: “you know, 18 inch, nearly 2 foot high, 2 foot which is what, 60cm high pile of papers that I have been served with over the course of this dispute.” His attitude to the service of papers however was revealed by the next sentence following that quote. There Mr Carnegie noted:
“I haven’t really wasted my time though going through it.”
As he had noted earlier in the interview, he believed that he had been enjoined:
“…by the Federal Magistrates Court some 24 or 25 days ago. However, during, unlike other people, I’m the community protestor and the community convenor. I decided to defy those injunctions because I believe that although I to a degree, believe in the, in a civil society and the rule of law, but then when the laws are unjust and laws are unfair, I believe that you have a moral duty to defy them and so in this case, I believe my moral duty was much higher than a legal, some legalism that hadn’t even been explained to me.”
Although Mr Carnegie did not elaborate upon what he meant by having the matters “explained” to him, it was evident from later statements that any explanation did not include him either taking the trouble to read the documents that had been served upon him or obtaining legal advice in respect of the effect of those documents. He was plainly aware of the general effect of the Court’s orders, and irrespective of his own attitude to them he knew and observed that other respondents[6] plainly ceased to attend at the site, a matter he also alluded to in the course of that interview.
[6] Being organisers or officials associated with the CFMEU and or the Australian Building, Construction Employees, and Builder’s Labourers Federation (Queensland Branch) Union of Employees.
I am satisfied from the evidence that there was a positive intention to ignore the order and defy the Court, such that the service of an order appropriately endorsed would have constituted a useless formality in the circumstances.
Knowledge of need to obey
In my view, Mr Carnegie’s statement in the interview that he “decided to defy those injunctions” by necessary implication was evidence of his knowledge of the need to obey the order. Given the circumstances in which the statement was made, together with the surrounding statements, no other conclusion is reasonably available.
Reason for absence of penal endorsement
This consideration concerns the circumstances surrounding the granting of the relief. In this case the evidence is plain. Following the hearing the order was engrossed in the chambers of the Judge. No draft was submitted at the hearing. The orders were engrossed in terms of the relief claimed in the application. However, that matter alone ought not excuse the applicant’s failure to note the absence of the penal endorsement in the engrossed order provided from the Court and ensure its correction as soon as reasonably practicable after its initial issue. Had the applicant by its solicitor promptly noted the omission, corrected it and re-served the order, the current difficulties would have been avoided. In any event, as the facts in Deverall (supra) indicate, that matter alone is not determinative.
Flagrant and contumelious disregard
The final factor material to the exercise of the discretion concerns whether or not the conduct of the respondent can be seen to have been “flagrant or contumelious.”
Again, by reference to the statements made by Mr Carnegie in the interview uploaded on 16 October, the only reasonable conclusion open is that his conduct was indeed flagrant and contumelious. Not only do his statements suggest he was aware of the injunctions but that he wilfully chose to ignore them because of his claimed higher moral purpose. Additionally, he did so wilfully, apparently aware of the penalties that could flow from such defiance. In that regard it should also be noted that, notwithstanding that the interview given by Mr Carnegie post-dated the events the subject of the outstanding counts, his expression was quite plain: the views expressed reflected his attitude from the date he was first served with process (including the material court orders).
Conclusion
In my view, the circumstances of this case warrant the exercise of the Court’s discretion to waive the applicant’s non-compliance with FCCR r.29.07. Mr Carnegie understood the effect and intent of the orders. Their significance would have been highlighted by the absence of the other respondents from the vicinity of the QCH Project following the making of the orders, a matter he would have appreciated because of the temporal relationship between their non-attendance at the QCH Project and the date he was served with orders. He deliberately sought to cast from his mind any knowledge of the orders by simply ignoring the material served upon him or seeking advice in respect of those matters. He understood the need to comply with court orders but his view was that as a community protester he was somehow above the law and his personal sense of morality justified his stance. He clearly recognised the possible consequences of non-compliance. Despite these matters, he proceeded to disobey the orders in circumstances that suggest a contumelious disregard for the orders. I am satisfied from the facts that even had he been served with an order incorporating the penal endorsement, he would have disobeyed it. Accordingly, the absence of the penal endorsement in this instance would not have served to place Mr Carnegie on any better notice of the risks of non-compliance and no injustice would follow for him in waiving the non-compliance pursuant FCCR r.1.06.
Orders are not “clear and unambiguous”
The next complaint made by the respondent is that the orders of 5 September 2012 were not so “clear and unambiguous” in their terms that their breach could be said to be clear beyond reasonable doubt. The respondent contended that any ambiguity, uncertainty or want of clarity in the order should be construed against the applicants contra proferentem: Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87; Livingspring Pty Ltd v Haktoh [2007] VSC 9 at [24] per Cavanough J.
The deficiencies identified by the respondent are:
a)The order lacked clarity in respect of its geographic definition;
b)The meaning and intent of the order was dependent upon a non-existent document referred to in the order;
c)The language of the order itself was imprecise and lacked meaning.
The respondent contended that the terms of the order did not state what the respondent was or was not permitted to do. In particular, it was contended that the order purported to regulate conduct within geographical limits. In sub clauses d, e, g and i of Order 4 it was provided that the respondent was restrained from:
“d. Organising, encouraging, assisting or participating in a picket line at the entry or exit points of the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012) which has the effect of causing conduct the subject of sub clause e, f, or g herein;
e. Impeding, hindering or preventing the entry or exit of persons or vehicles to and from the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012);
…
g. Verbally abusing or threatening any person in the vicinity of the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012);
…
i. Attending or organising or procuring any person to attend within 100 metres of any entrance or exit to the QCH Project (as defined in the Further Amended Application filed on 5 September, 2012)…’
It was contended that the conduct to be regulated was conduct that was otherwise lawful. Accordingly, it was argued that a proper description of those locations where the otherwise lawful conduct was to be prohibited was absolutely fundamental. It was contended for the respondent that those locations were simply not plainly and unambiguously communicated to the respondent by reason of the terms of the orders.
The order purported to define the geographical application of the injunction by reference to “the QCH Project,” a term which was in turn qualified by the phrase “as defined in the Further Amended Application filed on 5 September, 2012.”
It was submitted that the term “the QCH Project” was an unhelpful phrase. In particular, the respondent contended that it was capable of referring to a constellation of geographic locations. Reference was made to not only the principal construction site, which was evidenced in photographic exhibits 1 and 3, but also ancillary parts of the Mater Children’s Hospital which included the QCH Project office which was located at 199 Grey Street, South Brisbane, that is some 400 or 500 metres from the site the subject of the works, and also other office accommodation contained within buildings in the hospital grounds adjacent to the construction works themselves.
Counsel for the respondent contended the term “the QCH Project” was a “distinctly unhelpful phrase.” In particular he sought to rely upon the definition of the word “project” as defined in the shorter Oxford English Dictionary, which defined the term to include “outline or draft”; a “metal conception”; a “planned or proposed undertaking”; “an individual or collaborate enterprise undertaken for industrial or scientific research”; a “government subsidised estate.”
Respectfully, I do not accept this submission. The term “project” as employed in the order was a term was employed as a proper noun capital ‘P’ “Project” amplified by the adjectival acronym “QCH.” The submission contended for on behalf of the respondents on this point fails to afford the term “Project” its contextual meaning. In the context of the dispute which existed before the parties I am satisfied that the respondent had full notice and understanding that the term “the QCH Project” plainly meant the Queensland Children’s Hospital construction works being undertaken on a site bounded by four streets, the principal one being Stanley Street, South Brisbane. The QCH Project is not and was not at the time some small and insignificant works being undertaken in the back blocks of greater Brisbane. It was a multi-billion dollar construction project which had been the subject of considerable political controversy and continued to be so throughout the course of this dispute for reasons unrelated to the events giving rise to the applicant’s entitlement to injunctive relief against the respondent. At the time of these events, the term “the QCH Project” had, in South East Queensland, as much currency as, for instance, “the Myer Development” in Bourke Street, Melbourne has in Victoria or “the Barangaroo Project” has in Sydney. Respectfully, the respondent’s contention on this point is disingenuous.
While I accept the respondent’s contention that the term “the QCH Project” also refers to a constellation of locations, in my view that factor is less troubling in this instance. It is not inconceivable that relief was sought in respect of all those parts of the QCH Project which included not only the construction site, but also the offsite locations of construction staff, management and other administrative functionaries. However, I consider it unnecessary to determine that matter expressly because in this case the activity complained of against the respondent occurred on the Graham Street frontage immediately outside the workers entrance to the construction site, bounded by the four streets in which the construction was being undertaken. Had the conduct complained of occurred at one of the satellite sites, the respondent’s complaints would have required more careful consideration. However, the principal conduct complained of giving rise to the relief occurred at or about the same location the subject of these complaints. For the respondent to now complain that the term “the QCH Project” is ambiguous because of the prospect of there being a constellation of satellite sites to which it might also pertain in circumstances where the reference to those satellite sites is entirely irrelevant to the subject matter of the complaint is, respectfully, disingenuous. If nothing else the term “the QCH Project” plainly and unambiguously incorporated the building works taking place within the four street boundary referred to earlier.
Of more substance however is the respondent’s complaint that the term “the QCH Project” was a term defined by reference to the “the Further Amended Application filed on 5 September, 2012.” The fact is there was no Further Amended Application filed on 5 September 2012. What in fact had been filed on that date was a Further Further Amended Application. A Further Amended Application had been filed on 20 August 2012.
The respondent, among others, was not a party to the proceedings at the time of filing the Further Amended Application on 20 August 2012. The respondent only became a party to the proceedings on the filing of date of the Further Further Amended Application. That is, on 5 September 2012, that being the date that an application in a case was made for the orders now the subject of this application. However, for present purposes, irrespective of whether the respondent (or advisors if he had chosen to engage them) had looked to the Further Amended Application filed 20 August 2012 or the Further Further Amended Application filed 5 September 2012 in order to ascertain what was meant by the term “the QCH Project,” the answer would have been the same. That is to say, in paragraph 1 of either application the term “the QCH Project” was defined to mean the “Queensland Children’s Hospital and Queensland Children’s Hospital Energy Plant Project in Queensland.”
Notwithstanding that matter, the respondent’s primary submission was that as there was no such “Further Amended Application filed on 5 September, 2012,” none exists and none was served on the respondent. Accordingly, it was submitted that he had no basis to understand what “the QCH Project” as defined meant, and it follows that the order is incomplete and fundamentally flawed. He contended that notwithstanding the fact that there had been filed a Further Further Amended Application on that day, that was not the document referred to in the order and thus not a document to which the respondent was on notice to consider and, indeed, was excluded by necessary implication. It was contended that it was not a matter of an “inconsequential mis-description or a mis-description of no substantive consequence,” as was submitted by the applicant, because here the respondent was not in court when the order was applied for and so was apt to be misled. It was also argued that there was no basis for the respondent to interpret the Further Further Amended Application filed on 5 September 2012 as being the document referred to in the order as “the Further Amended Application filed on 5 September 2012” and that it was not for him to speculate that the applicant or their lawyers had perpetrated a mis-description. It was submitted that from the respondent’s perspective there was no evidence that it was a mis-description at all. In the circumstances, it was submitted that the flaw in the order meant that upon receipt of the order the respondent would have been unable to determine where he was and was not enjoined from geographically attending. Accordingly, it rendered the geographical prohibition meaningless.
Against that submission, the applicant contends that the task of the Court is simply to interpret the meaning of the term “the QCH Project” and consider whether the meaning assigned by the Court to that term was a meaning “…fairly to have been in the contemplation of the person to whom the order was directed…”: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 492.
In response, the respondent submitted that the applicant’s submission failed to address the implication specifically arising from the applicant’s intention to flag to any person reading the order that the ordinary construction of the QCH Project was not to occur as the term had been defined in another document. It was submitted that what was “fairly to have been in the contemplation” of the respondent arose in that very specific context. For the respondent it was contended that if the applicant wished to rely upon canons of construction including evidence of the respondent’s construction of the term, then they ought to have left the term undefined. As the applicant chose not to do that, they cannot now turn to those principles of construction which might apply when the term does not purport to adopt a specific definition.[7]
[7] Respondent’s submission at paragraph 4.18.
The respondent further contends that in any event the applicant must prove beyond reasonable doubt that the terms of the order itself are clear, unambiguous and capable of compliance. It was submitted for the respondent that this is a discreet requirement requiring the applicant to prove beyond reasonable doubt that the respondent had knowledge of the terms of the order. It contended the applicant was not permitted to conflate these separate elements, an error which it contends the applicant made in its submissions.
The complaint in this case is not an instance where there is a defect in the charge or indictment such that the question to be determined is whether “the statement and particulars of offense can be seen partly to relate to, and be intended to charge a known and subsisting criminal offense, but pleaded in terms which are inaccurate, incomplete or otherwise imperfect.”[8] If it were, then whether a conviction on the charge could be founded would depend upon whether “…it can be said with confidence that the particular error in the pleading cannot in anyway have prejudiced or embarrassed the defendant.”[9]
[8] R v Ayres (1984) AC 447 at 460.
[9] At 461.
Here the defect is not with the pleading but with the order itself. In particular, the order refers to a document which simply does not exist.
In Livingspring Pty Ltd v Chris Haktoh Ng (supra) at [19] Cavanough J was considering allegations of breaches of undertakings and orders restraining defendants from dissipating assets in the context of a contempt application. In particular, the undertaking included, inter alia, an undertaking not to “dissipate” any assets. There was dispute between the parties as to what the term “dissipate” meant. In the context of that debate, his Honour noted:
“The need for clarity
24 It seems to be common ground that a charge of contempt of court based on an alleged breach of an undertaking or order cannot succeed unless the relevant terms of the undertaking or order are clear and unambiguous. In Australian Consolidated Press Ltd v Morgan, (1965) 112 CLR 483 at 515-516 Owen J (with whom Windeyer J agreed on this point ) cited with approval and applied the following statement of general principle made by Jenkins J in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 :
" ... in my judgment, a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question."
See also McNair Anderson Associates Pty Ltd v Hinch (1985) VR 309 at 311-312. Further, since Australian Consolidated Press and McNair Anderson were decided, it has been authoritatively established that a charge of contempt of court must be proved on the criminal standard, ie beyond reasonable doubt. In Australian Competition and Consumer Commission v Collings Construction Co Pty Ltd, Bainton J held that if there be any ambiguity, uncertainty or want of clarity in an order it should be construed contra proferentem, the proferens being the party seeking it (and seeking to enforce it). …”
In the present context, it appears to me that the order is troubled by reference to the non-existent Further Amended Application filed on 5 September 2012. In Livingspring Pty Ltd v Chris Haktoh Ng (supra) and authorities referred to by Cavanough J at [35] including S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118 at 135; Tovehead Pty Ltd v Freeman [2003] NTCA 10 his Honour concluded that it was permissible to have recourse to extrinsic material in contempt proceedings to assist in construction of the order by taking into account “the factual matrix known to the parties.”[10] On that basis it might be argued that the respondent, upon reading the order, ought to have understood what was meant by “the QCH Project.”
[10] See also Athens v Randwick City Council [2005] NSWCA 317.
However, for reasons which follow, I do not think that this is a case where recourse can be had to extrinsic material. In Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) (supra), an authority relied upon by Cavanough J in support of the principle of an entitlement to rely upon extrinsic material, the court referred with approval to a decision of McPherson J in Commissioner of Water Resources v Federated Engine Drivers’ and Fireman’s Association Australasia Queensland Branch and Others [1988] 2 Qd R 385. The matter before McPherson J has a close analogy with the question for determination before me.
In that case his Honour was considering an application for orders for contempt, attachment and sequestration founded in disobedience of injunctive orders issued by a Court. The terms of the order made by the Court required reference to a number of contracts which were external to the Court order. In his reasoning, his Honour observed at 390:
“In its present form the injunction granted on 25 May restrains the respondents from procuring a breach by the company of its contract with the applicant. In order to comply with the injunction, it would in consequence be necessary for the respondents to refer to the terms of the contract, which is not in their possession, and no doubt also to take legal advice, in order to determine whether, by refusing to work in accordance with their own contracts of employment, they were procuring a breach of the companies contract with the applicant. That is quite contrary to another well settled rule governing injunctions, which is that the order should be so expressed that the person to whom it is directed should be able, by reading it and without more, at once to know what it is that he must do, or refrain from doing, in order to comply with its terms. See Epitomah Pty Ltd v Australasian Meat Industry Employees Union (No.2) (1984) 54 ALR 730, 741; Abella v Anderson (1987) 2 QTR 1.”
In Commissioner of Water Resources v Federated Engine Drivers’ and Fireman’s Association Australasia Queensland Branch and Others the offending document, a contract between the Commissioner of Water Resources and the employer of the respondents, was the absent instrument. But in this case the offending document simply does not exist. In my view, if the Further Further Amended Application filed on 5 September 2012 had been, for instance, annexed to the order but mis-described as it was, the issue would be less troubling with an apparent ambiguity then evident.
So much is consistent with the decision of de Jersey J in Madeira v Roggette Pty Ltd [1990] 2 Qd R 357. In that case the relevant order referred to directed the respondent be restrained “from re-erecting any barricade or obstruction to the main thoroughfare in the area described in paragraph 31 of the affidavit…” and that it “cause the area being that part of exhibit 1.1 of the said affidavit immediately to the south and west of the area shaded in pink…”
There the respondent, relying upon the authority of Commissioner of Water Resources v Federated Engine Drivers’ and Fireman’s Association Australasia Queensland Branch and Others (supra), contended that the order was not clear. In response to that submission, his Honour stated:
“I consider that the relevant provisions of the order of MacKenzie J were sufficiently certain clear and unambiguous. While it is true that they invited recourse to an affidavit and diagrams, that was a reasonable and convenient way of specifying Rogjet’s obligations, and it is significant that Rogjet, having consented to the order, was prepared to have its obligations spelt out in that way. Otherwise the result would have been an unduly cumbersome set of orders. The situation is distinguishable from that in Commissioner of Water Resources v FEDFA…”
A number of other single judge decisions, each determined on their individual facts, illustrate the difficulties that can arise by reference to external documents in Court orders: see Tovehead Pty Ltd & Anor v Owston Nominees No 2 Pty Ltd & Anor [2002] NTSC 64 and GDL Investments (Qld) Pty Ltd v Spotwire Pty Ltd [2003] QSC 273 and Ryan v Wright [2004] NSWSC 749.
Clearly the reference to related material itself is not problematic. However it is noteworthy that in each of those cases the real issue to be resolved by the court involved a question of ambiguity. But this is not an instance of ambiguity. The order is plain in its expression but is simply wrong.
In Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 the Full Court was considering the terms of an order which was plainly wrong in its expression. In that case the order was drawn in the plural while the two preceding orders were expressed in the singular. In considering the question, the Full Court referred to its earlier decision in Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117. Commencing from [27], her Honour Branston J, with whom Lindgren and Finkelstein JJ concurred, state:,
“27. The order alleged to have been disobeyed by Mr Marks was an order (‘order 1(a)’) restraining him from ‘reproducing or authorising the reproduction of the whole or a substantial part’ of any of certain identified computer programs. The order made no reference to the licence or consent of Microsoft. Beaumont J at 139 identified three possible constructions of the order and expressed a tentative preference for one of the three. The critical passage from his Honour’s reasons for judgment for present purposes is the following passage:
‘Yet it must follow, in my opinion, that to this extent order 1(a) should be treated as equivocal and its meaning as ambiguous. That being so, and since the question whether Microsoft had, in fact, consented was put in issue in the contempt proceedings, it must further follow that any attempt by Microsoft to move for contempt for alleged breach of such an order must have failed.
In any event, this outcome probably follows from an application of the general observations made in Witham on the relevance of the criminal standard of proof; there is a doubt as to the meaning of order 1(a) in an important respect, and ... that doubt is a reasonable one. In any event, the approach suggested is supported by authority which appears to be squarely in point. In Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT Rep 387 (Redwing) Jenkins J said (at 390):
"I cannot say I think that the undertakings contained in the order were clearly drawn and I cannot say I regard the questions of construction involved in them as entirely easy questions, but in my judgment, a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question."’ (emphasis in original)
28. The above passage from the reasons for judgment of Beaumont J gives rise to questions. First, it is not clear precisely what his Honour intended to convey by describing order 1(a) as ‘equivocal’ and ‘ambiguous’. Secondly, it is not clear whether his Honour was (a) intending to lay down a principle of law or (b) acknowledging a problem of proof.
29. To describe a court order as ‘equivocal’ or ‘ambiguous’ is to assert (at least) one of two possible things; either that its intended meaning is unclear or that, although its intended meaning is clear, its application in particular circumstances is uncertain. This point is well illustrated by reference to Life Insurance Company of Australia Limited v Phillips [1925] HCA 18; (1925) 36 CLR 60 (‘Phillips’), a case concerning an insurance contract. In Phillips Isaac J at 78-79 observed:
‘A document purporting to be a contract may be ambiguous. But the term "ambiguity" is itself not inflexible. It may arise from doubt as to the construction in their totality of the ordinary and in themselves well-understood English words the parties have employed. That is true construction. Or it may arise from the diversity of subjects to which those words may in the circumstances be applied. That is rather interpretation of terms. Or again, it may arise from obscurity as to the full expression in ordinary language of some abbreviated term or arbitrary form that has been adopted. That again is interpretation of terms. Very different consequences attach according as the ambiguity rests in construction or in interpretation ...
As to construction, there is always one and only one true meaning to be given to fully expressed words. Sir Montague Smith, speaking for the Judicial Committee in McConnel v. Murphy, said: - "In questions of difficult interpretation, not only two, but frequently many constructions may be suggested. And, after all, there must be one true construction; and if that true construction can be arrived at with reasonable certainty, although with difficulty, then it cannot properly be said that there are two meanings to the contract." Once there is established the full mutual expression of the agreement in English words, the construction of the document is, as Lindley L.J. says, a pure matter of law.’ (citation omitted)
30. A court order, like a contract of insurance, may need to be construed to enable its true meaning to be ascertained. Once its true meaning has been ascertained it may nonetheless be found to be ambiguous because, for example, a term used in the order may apply to two different subject matters. In Phillips, Isaac J illustrated this possibility in the context of a contract by reference to the facts of Raffles v Wichelhaus [1864] EngR 150; (1864) 2 H&C 906. In that case a contract referred to cotton ‘to arrive ex Peerless from Bombay’ when two ships equally answered that description. Lindgren J in his reasons for judgment on the question of law reserved to this Full Court, which I have had the benefit of reading in draft, provides an excellent hypothetical example of an order that may, albeit that its true meaning is clear, be found to have an ambiguous or uncertain operation. His Honour’s example is an order which restrains a person from doing something ‘in daylight’; should the person do the thing at twilight the operation of the order may be found to be uncertain although its operation would be certain had the person done the thing at noon.
31. The observations of Jenkins J in Redwing upon which Beaumont J placed reliance in Microsoft v Marks had earlier received consideration in Morgan. In Morgan the appellant sought support from Redwing and Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87 (‘Iberian Trust’) for the submission that unless the language of the undertaking was unambiguous and certain, it should not be enforced by contempt proceedings. In Redwing a defendant in a passing off action had given certain undertakings which became embodied in an order of the court. Jenkins J refused to attach the defendant’s directors for contempt of court because the undertakings contained in the orders were not clearly drawn and the questions of construction involved were not easy. In Iberian Trust a proceeding for contempt had failed because the order in question had not in terms directed the alleged contemnor to do anything; it had directed an outcome rather than conduct of any kind.
32. In Morgan Barwick CJ at 492 expressed the view that the authorities relied upon did not support the submission of the appellant. In a passage reminiscent of the approach taken by Isaacs J in Phillips, the Chief Justice stated at 492:
‘If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it.’
33. Windeyer J also invoked the construction/interpretation dichotomy identified by Isaacs J in Phillips. His Honour at 503 said:
‘This is not a case in which the extent of obligations undertaken is ascertainable simply by construing the undertaking according to ordinary grammatical rules. If that were so, I would agree that a mistake in construction could not excuse disobedience, although it might perhaps mitigate its consequences ... If its true meaning, although not immediately plain, can be ascertained according to ordinary rules of construction, then the person giving the undertaking is bound by it in that sense. But the uncertainties that lurk in the words of this undertaking, and which were exposed during the argument, cannot be resolved in that way, for they do not arise from a debatable construction but from an uncertain denotation.’
34. The third member of the High Court in Morgan was Owen J. After expressing agreement with statements of general principle from Redwing and Iberian Trust, Owen J at 516 said:
‘In my opinion the ambiguity of and lack of precision in the appellant's undertaking which, it should be remembered, was originally drawn by the respondents' solicitors in the District Court proceedings are such that a finding of contempt should not be made.’
35. It seems to me, particularly in light of Windeyer J’s expressed agreement with his Honour, that Owen J must be understood to have intended to convey by the above passage that, on its true construction, the meaning of the appellant’s undertaking (in the language of Windeyer J, the ‘denotation’ of its words) was uncertain.
36. Having regard to the views expressed by the members of the High Court in Morgan, Beaumont J’s description in Microsoft v Marks of order 1(a) as ‘equivocal’ and ‘ambiguous’ is, in my view, to be understood as a finding that on its proper construction, order 1(a) had an uncertain meaning such that proof that it had not been complied with would prove problematic. His Honour’s reference to the question of whether Microsoft had consented having been put in issue by the alleged contemnor indicates that his Honour regarded order 1(a) as providing a possible foundation for a charge of contempt. If the order were not capable as a matter of law of founding a charge of contempt it would be immaterial whether the question of Microsoft’s consent had been put in issue. I therefore conclude that relevantly the ratio decidendi of Microsoft v Marks is that an appeal from a dismissal of a charge of contempt will fail for want of proof if the order alleged to have been disobeyed is, on its proper construction, of uncertain application in the circumstances giving rise to the alleged disobedience.”
I have incorporated this lengthy but illuminating extract of Justice Branson’s judgment because it both examines and explains the issue of ambiguity. An appreciation of those matters is, in my view, essential to the resolution of this point. In particular, following the approach enunciated by the Justices of the High Court in Morgan, it highlights the need to first ascertain whether or not there is an ambiguity before proceeding to then consider how such an ambiguity is resolved.
Accepting the reasoning of the Full Court, it is only proper to embark upon a process of construction in circumstances where the order suffers an ambiguity. As I have noted the order is plain in its expression but simply wrong. As Young J observed in his brief note Construing Court Orders 1998 (72) ALJ 117, the appropriate course for resolving ambiguities in court orders is to apply for an appropriate declaration because the court is functus officio. That would occur in the context of this application if ambiguity was evident. However, where the order itself is plain, but in error that is unnecessary as the Court’s powers are not functus officio. As the order contains an error, a power exists under the FCCR at r.16.05, commonly referred to as the ‘slip rule,’ for its correction.
In Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCAFC 149 the Full Court examined the circumstances in which it was appropriate to invoke the slip rule. In summary, the Court concluded that:
1.To invoke the slip rule there had to be an identifiable judgment or order to be corrected;
2.If so the court must be able to conclude that the error arose from an accidental slip or omission – the rule contemplates a causal connection between the slip and or omission and the error;
3.The power was to correct, not to vary or set aside.
In Australia Communication and Media Authority v Clarity 1 Pty Ltd [2008] FCA 130, McKerracher J, in considering the application of the slip rule, observed that the rule could only apply to any omission or oversight made at the time of making the order which does not change the substantive character of the order and that the rule should not apply where the amendment is a matter of controversy or where there may be a difference of opinion as to whether the orders would have been amended had the need to do so been raised at the time.
In this case, it is apparent that the reference to the “Further Amended Application filed on 5 September, 2012” is in error. On that date a Further Further Amended Application was filed. Given that the reference to the pleading is made by reference to the date there can be no doubt that what was intended for in the order was indeed reference to the Further Further Amended Application filed on 5 September, 2012 and not the Further Amended Application as so described and which had been filed on 20 August 2012. In those circumstances, it appears that the matter is one where it would be appropriate for an order to be made under the slip rule.
However, that matter highlights the difficulty which is evident in this case, namely that there is no ambiguity and that the issue with the order is not one which can simply be resolved by reference to principles of construction, when in fact the appropriate course is to correct the order. Of course it is unlikely that this difficulty would arise in a civil proceeding. However, the nature of this application is quasi-criminal and accordingly calls for a much stricter approach.
While the applicant urges that as a matter of common sense the respondent would have been under no allusion as to what was meant by the term “the QCH Project,” the fact remains that it is well settled that proceedings for contempt are quasi-criminal or penal in nature, with the consequence that “the utmost strictness in procedure and proof is demanded”: Clifford v Middleton (supra) at 739; Colefax v Colefax [1933] St R Qd 222; Re Bramblevale Ltd [1970] Ch 128 at 137 and Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 at 73. In my view, the order as it was expressed could not on its face be plainly understood. The term “QCH Project” was subject to definition in a document which did not exist. It is not to the point that an earlier document which did exist and which bore a deceptively similar title informed the term “QCH Project,” or that the Further Further Amended Application filed on 5 September, 2012 defined the “QCH Project” in identical terms. Nor is it to the point that by reference to extrinsic material the respondent would reasonably have understood what was being directed by the Court in its orders.
The fact that the order requires correction of itself confirms that the language is sufficiently uncertain as not to warrant an enforcement by contempt proceedings. This case illustrates how the addition of reference to external documents within the terms of an order adds an overlying level of complexity which calls for particular care and attention in the settling and reviewing of orders[11], especially in cases where orders are sought ex parte and where the circumstances surrounding their making might reasonably foreshadow the need for enforcement.
[11] It should be recalled that Sir Roger Casement was ‘hanged on a comma’.
In my view, on a strict reading of the document the order was plainly expressed but meaningless and, accordingly, the respondent could not be bound by it in the context of quasi-criminal proceedings.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Associate: L.French
Date: 16 August 2013
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