Boral Resources (Vic) Pty Ltd v CFMEU
[2013] VSC 572
•28 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 00928
| BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731) & ORS | Plaintiffs |
| V | |
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION | Defendant |
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JUDGE: | DIGBY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2013 | |
DATE OF JUDGMENT: | 28 October 2013 | |
CASE MAY BE CITED AS: | Boral Resources (Vic) Pty Ltd & Ors v CFMEU | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 572 | |
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PROCEDURE – Contempt of court – Application for Supreme Court (General Civil Procedure) Rules 2005 (Rules), Order 9.06(2) - Application by Attorney-General for the State of Victoria to be joined to contempt proceedings – Application by Attorney-General to intervene in proceeding – Inherent jurisdiction - Underlying proceedings for contempt pursuant to Order 75 of the Rules – Consideration of discretion as to joinder – Scope of Rule 9.06(2) – Scope of inherent jurisdiction - Characterisation of underlying contempt – Civil or Criminal – Importance of distinction – Factors informing proper exercise of discretion – Section 22 Public Prosecutions Act (Vic) 1994.
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APPEARANCES: | Counsel | Solicitors |
| For the Attorney-General | Mr J B Davis with Ms R N Sweet | Victorian Government Solicitor’s Office |
| For the Plaintiffs | Mr J Snaden | Fisher Cartwright Berriman Melbourne Pty Limited |
| For the Defendant | Mr N Clelland SC with Ms R Shann | Slater & Gordon |
HIS HONOUR:
Background
The underlying proceedings – the Boral Contempt Application
By Summons filed 22 August 2013 (“the Contempt Summons”), the Plaintiffs seek orders that the Defendant, the Construction, Forestry, Mining and Energy Union (“CFMEU”), be punished for contempt pursuant to Order 75 of the Supreme Court (General Civil Procedure) Rules 2005 (Supreme Court Rules) (“the Boral Contempt Application”).
The alleged contempts are said by the Plaintiffs to be constituted by the Defendant’s disobedience of orders of this Court made on 7 March 2013 and 5 April 2013. The asserted disobedience relates to the alleged maintenance by the Defendant of a blockade to entry to a building site in contravention of court orders not to do so. The alleged contempts also include allegations that the Defendant failed to comply with court ordered administrative requirements, including the filing of material. The Plaintiffs’ Statement of Charges is set out in full below.
In this matter, the Attorney-General for the State of Victoria, who is not presently a party to the above proceedings, seeks to be joined as a party pursuant to rule 9.06(2) of the Supreme Court Rules. Alternatively, the Attorney-General seeks leave to intervene in these proceedings pursuant to the court’s inherent jurisdiction to permit such intervention in appropriate circumstances.
The Attorney-General’s Joinder Summons
The Attorney-General’s application to be joined, alternatively for leave to intervene, is made by Summons filed on 4 September 2013[1] (the “Joinder Summons”). Pursuant to this summons the Attorney-General seeks:
(a)to be joined as a party to the Boral Contempt Application pursuant to rule 9.06(2) of the Supreme Court Rules; alternatively;
(b)leave to intervene in that application pursuant to the Court’s inherent jurisdiction.
[1]The Summons dated 4 September 2013 is supported by the Affidavit of Peter Stewart (sworn 4 September 2013).
The Attorney-General’s Joinder Summons specifies the purpose of the joinder sought, namely that the Attorney-General may:
(a)Seek orders pursuant to rule 75.06 of the Supreme Court Rules that the Defendant be punished for contempt of Court in accordance with the Statement of Charge set out in the Schedule to the Plaintiffs’ Summons;
(b)Make submissions and/or lead evidence in the application the subject of the Plaintiffs’ Summons, to the extent that such submissions and/or evidence do not duplicate those of the first to sixth Plaintiffs.
Further, the Attorney-General’s Joinder Summons seeks an order that the Attorney-General’s application for the orders set out in subparagraph (a) in the above paragraph be heard in conjunction with Boral’s Contempt Summons.
In relation to the Attorney-General’s alternative application for leave to be joined to the proceeding as an intervener, the Joinder Summons specifies the purpose of such joinder as being so that the Attorney-General may do those things identified in subparagraphs (a) and (b) of paragraph [5] above.
On the first return of the Joinder Summons on 9 September 2013 an issue arose as to whether the application for the joinder of the Attorney-General should be heard and determined in advance of the hearing date for the Contempt Summons or alternatively at the commencement of the hearing of the Contempt Summons. On 10 September 2013 I ruled that the Attorney-General’s Joinder Summons should be heard and determined in advance of the Contempt Summons hearing.[2]
[2]See reasons provided to the parties on 10 August 2013.
The affidavit material filed in the application
The Attorney-General, as applicant, has filed affidavit material in relation to this application. In particular, Peter Stewart, Victorian Government Solicitor, deposed that:
Consistent with the Court’s objective of avoiding multiplicity of proceedings, the Attorney-General seeks to join to the extant proceeding, rather than issue a separate proceeding.
The Attorney-General is concerned to avoid the development of a perception that the orders of this Court may be disobeyed in industrial contexts, or that those who disobey them can escape sanction as part of a wider settlement of underlying industrial disputes.[3]
[3]Affidavit of Peter Stewart (sworn 4 September 2013), [5]-[6].
The parties’ submissions and Boral’s submission
The parties had provided a series of written submissions, some before and some subsequent to oral argument on 19 September 2013. Those written submissions were received on 6 September 2013 [Attorney-General], 16 September 2013 [Defendant], 18 September 2013 [Attorney-General], 23 September 2013 [Attorney-General], 27 September 2013 [Defendant], 23 October 2013 [Attorney-General], 24 October 2013 [Defendant] and 24 October 2013 [Boral].
Application for joinder to a civil contempt action by the Attorney-General: unprecedented in Victoria?
The Defendant submits that the proposed joinder of the Attorney-General in a proceeding such as the Contempt Summons “has no real precedent in Victoria”. However, the Plaintiffs point to an order of the type sought by the Joinder Summons made by Cavanough J in Grocon v CFMEU (Grocon)[4]. The Defendant submits in response that because of the circumstances of the application in Grocon, including that it was not opposed, that joinder order should not guide the exercise of the Court’s discretion in this matter. I shall return to the detail of these contentions.
[4][2013] VSC 275.
The Attorney-General’s special position
The Attorney-General points out that he is the first law officer of the State. The Attorney-General argues that the holder of this office has been judicially recognised as “the appropriate officer of the State to represent and safeguard the public interest in vindicating the authority of the Courts”.[5] These propositions are not contentious and I readily accept them.
[5]Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia & Ors [2001] FCA 774 (AIG), [8] (Merkel J). See also Clampett v Attorney-General v Commonwealth (2009) 260 ALR 462, in which Black CJ held at [75] that the Attorney-General of the Commonwealth “has ultimate responsibility for the protection of the courts of the Commonwealth” and expressly approved the comments of Merkel J in AIG [2001] FCA 774 , [80].
The Attorney General also argues that the power of Attorney-General to litigate contempt of court applications in the public interest is well recognised. As Lord Diplock articulated in Attorney-General (UK) v Times Newspapers:[6]
[T]he Attorney-General accepts the responsibility of receiving complaints of alleged contempt of court from parties to litigation and of making an application in his official capacity for committal of the offender if he thinks this course to be justified in the public interest. He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown, as do Her Majesty’s judges themselves; but he acts on behalf of the Crown as the “fountain of justice” and not in the exercise of its executive functions.[7]
It should be noted, however, that this part of Lord Diplock’s speech was addressing the topic of criminal contempt. This judgment will be considered in greater detail below.
[6][1974] AC 273.
[7]Ibid 311. That case is referred to without apparent disapproval in BHP v Dagi [1996] 2 VR 117, 124 (Winneke P), 141 (Brooking JA), and 200 (Hayne JA).
In Clampett v Attorney-General of the Commonwealth[8] Black CJ noted the decision of Lord Diplock[9] and held that the “functions of the office [of the Attorney General] extend, as is uncontroversial, to protecting the Courts by bringing proceedings”.[10] This was, of course, a reference to the Attorney-General of the Commonwealth. Clampett’s case concerned a contempt in the face of the court and therefore a contempt in the nature of a criminal contempt.
[8](2009) 181 FCR 473.
[9]Ibid [71].
[10]Ibid [81].
Although rarely exercised in the State of Victoria,[11] the courts have accepted that an Attorney-General has the power to make an application that a person be punished for civil contempt.[12] The Attorney-General observes that the existence of this power is consistent with the responsibility of the Attorney-General to protect the administration of justice, including the public expectation that orders of the Courts are obeyed.
[11]See BHP v Dagi [1996] 2 VR 117, 124, 126 (Winneke P).
[12]See Grocon [2013] VSC 275, [3]; AIG [2001] FCA 774, [8] (Merkel J) dealing in a case concerning a criminal contempt with the general overarching role of the Attorney General to vindicate the authority of the Courts.
In Dagi however the Victorian Court of Appeal explained why it has not been the practice for the Attorney-General to prosecute contempts of civil proceedings. In that case Winneke P said that the reason why they (the Attorney-General and the Director of Public Prosecutions) have not moved the court in respect of such contempts is because, although they are directly involved in the administration of criminal proceedings they will not, and cannot be expected to, know the course of civil proceedings or of interferences with them. His Honour the President of the Court of Appeal cited with approval the more fulsome explanation of the reason for the Attorney-General desisting in that regard, dealt with by Lord Denning M.R. in Attorney-General v Times Newspapers [ 1973] 1 QB 710 at 737-8.
The principal issue: Is the Attorney-General’s joinder or intervention appropriate in the case of a civil contempt?
The principal issue raised by the Attorney-General’s application is the question of the Attorney-General’s standing and the Court’s power to permit the joinder of the Attorney-General, or the granting of leave for the Attorney-General to intervene in these proceedings which relate to a ”civil” contempt of court. The civil contempt, if correctly so characterised, in this instance is disobedience of a Court order made in this proceeding which is a proceeding between private litigants.
The underlying Boral Contempt Summons
The Boral Contempt Summons makes application for the Defendant to be punished for contempt of court pursuant to rule 75.06 of the Supreme Court Rules. The Contempt Summons specifies the contempt charged against the Defendant by way of a Statement of Charges in the Schedule to the Contempt Summons.
Because of the importance of the nature and characterisation of the contempt charges being alleged by the Plaintiffs, the Boral Statement of Charges is set out in full:
STATEMENT OF CHARGES
An Order is sought that the defendant be punished for its contempt in breaching the orders of the Honourable Justice Hollingworth made on Thursday, 7 March 2013 (March Order) and Friday, 5 April 2013 (April Order) as alleged in each of the charges below.
1.In breach of paragraph 2 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the Regional Rail Link construction site at Joseph Street, Footscray, Victoria (RRL Site), procured the failure, by a person or persons engaged or employed to deliver concrete supplied by the first plaintiff to that site at or during that time, to perform that delivery work.
PARTICUALRS
At the time and place alleged, the defendant — by its employee, Mr Joseph Myles — organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the corner of Joseph Road and Maribyrnong Street, Footscray so as to prevent, hinder or obstruct access to that site by concrete delivery vehicles; and, by so organising, implementing, participating in, constituting and maintaining, prevented persons who were engaged to deliver concrete supplied by the plaintiff to that site at the time or times over which that blockade remained in place (namely Mr Joe Faraci, Mr Nick Bouranis, Mr Cameron Powell and Mr Adrian Farfalla) from performing that work, or otherwise caused them not to perform it.
2.In breach of paragraph 3 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the RRL Site, prevented the supply of concrete by the first plaintiff to that site.
PARTICULARS
At the time and place alleged, the defendant — by its employee, Mr Joseph Myles — organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the corner of Joseph Road and Maribyrnong Street, Footscray so as to render access to that site by concrete delivery vehicles impossible.
3.Alternatively to paragraph 2 above: in breach of paragraph 3 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the RRL Site, interfered with the supply of concrete by the first plaintiff to that site.
PARTICUALRS
At the time and place alleged, the defendant — by its employee, Mr Joseph Myles — organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the corner of Joseph Road and Maribyrnong Street, Footscray so as to render free access to that site by concrete delivery vehicles impossible.
4.In breach of paragraph 6 of the April Order, the defendant did not, prior to the deadline by which it was required by that order to do so — namely, 11:00am on Tuesday, 11 April 2013 — file and serve on the solicitors for the plaintiffs an affidavit setting out what, if any, steps it took by way of compliance with paragraphs 4 and 5 of the April Order.
5.In breach of paragraph 4 of the March Order, the defendant did not, prior to the deadline by which it was required by that order to do so — namely, 12 noon on Friday, 8 March 2013 — publish a statement, on the homepage of the Victoria/Tasmania branch of its Construction and General Division, setting out the matters specified in paragraph 4(a) and (b) of the March Order.
6.In breach of paragraph 5 of the March Order, the defendant did not, prior to the deadline by which it was required by that order to do so — namely, 11:00am on Tuesday, 12 March 2013 — file and serve on the solicitors for the plaintiffs an affidavit setting out what, if any steps it took by way of compliance with paragraphs 3 and 4 of the March Order.
Characterisation of the alleged contempts as “civil “ or “criminal” contempts
The Attorney-General’s position
The Attorney-General’s primary submissions appear to acknowledge that the proper characterisation of the subject alleged contempts is that they are “civil contempts”.[13]
[13]AG’s Submissions dated 6 September 2013, [6].
In that regard, the Attorney-General submits that the Boral Contempt Application is on all fours with the contempt proceedings brought by the various Grocon plaintiffs.[14] The Boral Contempt Application is an application by one private litigant seeking orders that another private litigant, the Defendant, be punished for an alleged contempt committed by conduct in disobeyance or breach of an order made in civil litigation. Such a proceeding is often known as a “civil contempt” proceeding.[15]
[14]In Grocon v CFMEU, supra, and the Grocon contempt prosecution against the CFMEU.
[15]The High Court in Witham v Holloway (1995) 183 CLR 525 noted, at 530: “In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either where there is a contempt in the face of the court or there is an interference with the course of justice.”
The Attorney-General’s submissions as to the proper characterisation of the subject contempt charges are however somewhat equivocal. In the Attorney-General’s Supplementary Outline Submissions dated 23 September 2013 [7.2] he submits that the present Contempt Summons is capable of being characterised as alleging a wilful contempt.[16] The Submissions rely in particular on the word “procure” in the Statement of Charges and submit that this word, read together with Paragraphs 1 to 3 and the particulars thereto, gives rise to an implicit allegation of wilful conduct. Similarly, the Attorney-General submits that because the CFMEU is well-resourced, it can be inferred that the administrative steps which were ordered by the Court, but not complied with, were breached as a result of wilful non-compliance on the part of the CFMEU.
[16]Attorney-General’s Supplementary Outline of Submissions (23 September 2013), [7.2].
The Attorney-General’s further Supplementary Outline submissions dated 23 October 2013 [2 (c)] and [3] point out that the Defendant has on 18 October 2013 argued to the Court in a very recent discovery application determined in this proceeding by Daly AsJ on 23 October 2013, that the charges of contempt in this proceeding are “criminal in nature“. Further, the Attorney-General points out that the Associate Justice has, in determining that unsuccessful discovery application by Boral, held that the relevant context of the discovery application was a proceeding which should be properly categorised as a “criminal contempt”.
Accordingly, in the submissions referred to above the Attorney-General seeks support for his joinder application based on his submission that the alleged contempts have wilful elements to them and based on what is highlighted as the Defendant’s acceptance that the subject alleged contempts are not properly characterised as civil contempts and should be characterised as alleged criminal contempts.
The Defendant’s position
The Defendant in its primary submissions appeared to support the characterisation of the alleged contempts as “civil contempts”.[17]
[17]Defendant’s Submissions dated 16 September 2013 [3.8],[3.10] and Defendant’s Reply Submissions 27 September 2013 [1.4].
However, in its further Supplementary Outline submissions dated 24 October 2013 the Defendant adopts its own submissions as summarised by her Honour Associate Justice Daly in her Decision dated 23 October 2013 in this proceeding. The Defendant also relies on the Associate Justice’s reasons for dismissing the Boral application for discovery.
In Daly AsJ’s Decision dated 23 October 2013, the relevant submissions of the Defendant, as summarised, are that “ discovery ought not be ordered, as contempt proceedings are criminal in nature, and the authorities provide that discovery is not available in such cases” [2(c)]. The Defendant also by its submissions dated 24 October 2013 [3] adopts as part of its submission in relation to the Joinder Summons the reasons her Honour put forward as steps in the reasoning supporting the dismissal of the application for discovery by Boral. Those reasons, including at [6] and [11] of the Reasons for decision dated 23 October 2013, seek to explain why in the Associate Justice’s view the nature of the application by Boral should be properly characterised as a “criminal contempt” and why such characterisation flows from this proceeding having a punitive rather than a coercive or remedial purpose.
At this point I note that both the Attorney-General and the Defendant both submit that the Attorney-General has power to protect civil proceedings by applying for the punishment of criminal contempts affecting the proceedings (Attorney-General’s Submissions dated 6 September 2013 [7]-[9] and 18 September 2013 [4]–[10]; Defendants Submissions dated 16 September 2013 [2.1]), subject to it being just and convenient to do so in all the circumstances.
I consider that because the contempt proceedings appear to be directed to a solely punitive purpose, given that the alleged blockade to which they principally relate has not apparently continued to affected the RRL project for many months, those alleged contempts are likely to be characterised as alleged criminal contempts being prosecuted by Boral to punish the CFMEU for past breaches.
However, it is not necessary for me to come to a final conclusion or make any finding as to the character of the alleged breaches given my reasons set out below for concluding that the Attorney-General should, in the special circumstances of this application, be joined to this proceeding, whether it be in the nature of a criminal or a civil contempt. Furthermore, I consider that, at all events, it is inappropriate that I do so at this stage of the proceedings informed by very limited evidentiary material as to the alleged contempts and also as to the purpose of the proceeding and indeed no evidence on those topics from the plaintiff Boral which is the party complaining of the contempts and also the party seeking to prosecute them. This is an interlocutory application for joinder. Accordingly, I do not intend at this stage to make any conclusive finding as to the nature of the alleged contempts.
The prosecution of either a civil or criminal contempt is, as in this proceeding, undertaken in the courts civil jurisdiction pursuant to the Rules, in particular Order 75.01 and Order 75.06 of the Supreme Court (General Civil Procedure) Rules 2005, save in relation to the rules relating to contempt in the face of the Court, to which rule 76.02 relates, Hinch v Attorney-General[18]. Both the prosecution of a civil contempt and a criminal contempt are subject to procedures, distinct from normal civil proceedings, deigned to afford appropriate protections to the contemnor. In this regard a civil contempt proceeding is regarded as a quasi-criminal proceeding.
[18](1987) 164 CLR 15.
The Rules of Court applicable to the Attorney-General’s Joinder Application
Pursuant to Rule 9.06 of the Supreme Court Rules, the Court may, at any stage of a proceeding, order that certain persons be added as parties to a proceeding, including, at Rule 9.06(2)(b)(ii):
a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding. (italics added)
The Supreme Court Rules define “question” at Rule 1.13(1) as:
any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest.
The Defendant accepts that the Attorney-General has power to protect civil proceedings by applying for the punishment of contempts affecting those proceedings but so concedes only in relation to criminal contempts.[19]
[19]Defendant’s Submissions (16 September 2013), [2.1]. BHP v Dagi [1996] 2 VR 117, 141 (Brooking JA). Also see also Attorney-General (UK) v Times Newspapers [1974] AC 273, 311 (Lord Diplock).
The Defendant submits that the power of the Attorney-General to initiate rather than be joined to civil contempt proceedings where the contempt arises from breaches of orders in an underlying civil proceeding is not manifest, and further submits the power to intervene in existing civil contempt proceedings is even less clear.
The Defendant argues that in order to succeed in his application, the Attorney-General must establish, firstly, that there is a question arising between himself and a party to the proceeding in which he has a sufficient interest and, secondly, that it is both just and convenient for the Attorney-General to join.
Question or issue or matter raised by the Attorney-General
Both the Attorney-General and the Defendant recognise that Rule 1.13(1) of the Supreme Court Rules informs the task of identifying the necessary existence of a potential question.[20]
[20]Attorney-General’s Submissions 6 September 2013 [11]-[12]. Defendant’s Submissions [3.4].
The Defendant submits, and I accept, that the obvious meaning of the language employed in Rule 1.13(1)[21] is that the Attorney-General must establish that he has a “sufficient interest” in this proceeding and that this implies something beyond a mere “interest”.
[21]This rule set out above in paragraph [23].
The Attorney-General submits that he has a “sufficient interest” in relation to both questions of liability and any resulting penalty in this contempt proceeding.[22] This interest, the Attorney-General submits, is the public interest in connection with the administration of justice.[23] However, the Defendant argues that such “interest” is not “sufficient” ( Defendant’s Submissions 16 September 2013 [3.6]-[3.9] ).
[22]Attorney-General’s Submissions dated 6 September 2013 [7]-[10], [16-]-[18], 18 September 2013 Submissions [4]-[7] .
[23]Attorney General’s submissions 6 September 2013 [7]-[10].
The Defendant’s argument is that there is a public interest in every contempt proceeding, civil or criminal. However such a “mere” interest does not of itself warrant intervention in existing civil contempt proceedings because in such cases the public interest is sufficiently protected by the prosecution of the contempt by the relevant party.
The Defendant cites Home Office v Harman[24] where Lord Scarman commented:
The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much importance, but it does draw attention to the differences between on the one hand contempts such as ‘scandalising the court’, physically interfering with the course of justice, or publishing matter likely to prejudice a fair trial, and on the other those contempts which arise from non-compliance with an order made, or undertaking required, in legal proceedings. The former are usually the business of the Attorney-General to prosecute by committal proceedings (or otherwise); the latter, constituting as they do an injury to the private rights of a litigant, are usually left to him to bring to the notice of the court. And he may decide not to act; he may waive, or consent to, the non-compliance.[25] (underlining added)
[24][1983] 1 AC 280.
[25]Ibid 310.
The Defendant contends that support for its position can be drawn from what it submits to be the general position that although there is a public interest in all contempts, that has not resulted in any institutionalised role for the Attorney-General in civil contempt proceedings. The Defendant says this is because more must be shown to constitute a “sufficient” interest.
The Defendant also submits, in relation to Mr Stewart’s affidavit[26] in support of the application of the Attorney-General, that the “concern” identified by Mr Stewart on behalf of the Attorney-General is insufficient. The Attorney-General’s concern is said to be:
“The Attorney-General is concerned to avoid the development of a perception that the orders of this Court may be disobeyed in industrial contexts, or that those who disobey them can escape sanction as part of a wider settlement of underlying industrial disputes”.[27]
The Defendant says that this statement itself provides no foundation for the Attorney-General’s “concern”, and further argues that a “concern” is not equivalent to an “interest” let alone a “sufficient interest”.[28]
[26]Affidavit of Peter Stewart (sworn 4 September 2013).
[27]Affidavit of Peter Stewart (sworn 4 September 2013), [6].
[28]Defendant’s Submissions 16 September 2013 [3.11]-[3.13].
Further, the Defendant submits that the Attorney-General has failed to appropriately prove, even in an interlocutory context, the statement and the Attorney-General’s submission that here the disobedience of court orders may be used to exert pressure between civil parties, with the settlement of any contempt then forming part of a broader industrial accommodation[29].
[29]Defendant’s Submissions 16 September 2013 [3.13].
Finally, the Defendant says that the Attorney-General’s “concern” should not be sufficient to establish the requisite “sufficient interest”, especially when the “concern” relates to events occurring over three and a half months ago. In particular, the Defendant supports this submission by saying that the Attorney-General has not moved in a timely manner to have the Defendant punished for the alleged contempts. The Defendant submits that it militates against a conclusion that a sufficient interest is demonstrated in this case that the Attorney-General did not seek to act in accordance with his “concern” for between three and a half to five months.
Relevant legal principles: Distinction between Civil and Criminal Contempt
There does not appear to be a case, other than the decision in Grocon v CFMEU, [2013] VSC 275, in which the Attorney-General has sought to join an action for civil contempt of Court.
The most substantial treatment of the issue of civil contempt in Victoria is in the Victorian Court of Appeal case of BHP v Dagi (Dagi)[30]. The relevant parts of this judgment are cited in the Attorney-General’s submissions.[31] However, the judgment of the Court of Appeal in Dagi does not, in my view, provide clear guidance on the issues before the Court in this instance.
[30][1996] 2 VR 117.
[31]Submissions dated 6 September 2013 (footnotes 8 and 11)
A critical issue, much focused upon by the parties, in addition to the distinction between civil and criminal contempt proceedings, is whether it is ever appropriate for a court to permit the joinder of the Attorney-General to a civil contempt proceeding.
It is therefore relevant to consider if there remains a meaningful distinction between criminal and civil contempt. The law appears to be unsettled in this area. Nevertheless, it is clear that the distinction is less significant than it was, and that perhaps it should be discarded altogether.
Lowe and Sufrin in the The Law of Contempt usefully explain the distinction between civil and criminal contempt in English law:
In broad terms it is easy enough to distinguish criminal contempts from civil contempts. Criminal contempts are essentially offences of a public nature comprising publications or acts which interfere with the due course of justice as, for example, by tending to jeopardise the fair hearing of a trial or by tending to deter or frighten witnesses or by interrupting court proceedings or by tending to impair public confidence in the authority or integrity of the administration of justice. Civil contempts, on the other hand, are committed by disobeying court judgments or orders either to do or to abstain from doing particular acts, or by breaking the terms of an undertaking given to the court, on the faith of which a particular course of action or inaction is sanctioned, or by disobeying other court orders (for example not complying with an order for interrogatories). Civil contempts are therefore essentially ‘offences’ of a private nature since they deprive a party of the benefit for which the order was made. The essence of the courts’ jurisdiction in respect of criminal contempts is penal, the aim being to protect the public interest in ensuring the administration of justice is duly protected.[32]
[32]Nigel Lowe and Brenda Sufrin, The Law of Contempt (Butterworths, 3rd ed, 1996), 655-6. Also see the recent UK case of OB v The Director of the Serious Fraud Office [2012] EWCA Crim 67, where Lord Justice Gross discussed the distinction between civil and criminal contempt in some detail.
In Australia the case law demonstrates that the distinction has been seriously eroded in recent years.[33] Tracing the evolution of the treatment of civil and criminal contempt assists in discerning the significance of the distinction between civil and criminal contempt, if any, and also in assessing the practical ramifications attending each procedure.
[33]See Des Butler and Sharon Rodrick, Australian Media Law (Thomson Lawbook Co, 3rd ed, 2007) 6.25.
The cases addressing this issue indicate that:
(a)Over time, the sharp delineation between civil and criminal contempt has blurred, to the point where there is almost no practical impact of defining a contempt as either civil or criminal. It increasingly appears that in practical terms the Courts treat all contempts as “criminal” contempts, with the criminal standard of proof. Civil contempt proceedings are often referred to as at least “quasi” criminal in nature.
(b)This is because the legal consequences for a party in contempt of court do not greatly differ: a party in contempt, whether civil or criminal, may be punished by the Court by fines or even imprisonment.
(c)The practical impact of the two species of proceeding may be lessened because of the possibility of a civil contempt proceeding, being one in which, for example, because of evidence coming forward at trial which establishes that the earlier alleged civil contempts have a wilful or contumacious element, warranting punishment as a criminal contempt.
(d)There are examples where it is clear that wilful contempt has to be dealt with by a court, notwithstanding that the relevant “Statement of Charge” did not contain an express allegation of wilful or contumacious conduct.
(e)It is recognised in the cases that the failure by one party to comply with the final orders of the court is a threat to the administration of justice and undermines the authority of the court. As such, there is a public interest aspect to the proceedings and the potential punishment.
Eroding of the distinction between civil and criminal contempt
In Australia the distinction between civil and criminal contempt appears to have been seriously eroded. The High Court in AMIEU v Mudginberry Station Pty Ltd[34] moved towards the view that the distinction between the two forms of the contempt was artificial and that Courts should consider treating all contempts in the same way. The Court, by considering the history of the distinction, recognised that it was increasingly difficult to maintain the different treatment for civil and criminal contempt:
[34](1986) 161 CLR 98.
The distinction, not recognized in Scotland, which has often been made between civil and criminal contempt seems to have originated in the seventeenth century […] The existence of the distinction has been recognized in judgments of this Court: R. v. Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section; John Fairfax & Sons Pty. Ltd. v. McRae; Australian Consolidated Press Ltd. v. Morgan. The principal theoretical basis of the distinction is that disobedience to the process and orders of the court in civil proceedings is said to be a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement, whereas impeding the administration of justice is a public wrong. A secondary basis for the distinction is that the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive: Ansah v. Ansah.
The distinction has been attended by some practical consequences connected with procedure, onus of proof, right of appeal, mode of punishment, privilege from arrest, pardon and power to release an offender (Harnon, Civil and Criminal Contempts of Court, Modern Law Review, vol. 25 (1962), p. 179), though differences in approach to these matters have largely disappeared in more recent times. According to some authorities, criminal, but not civil, contempt could be punished by the imposition of a fine. More recent decisions indicate that a fine may be imposed when the contempt consists of wilful disobedience to a court order in the sense that the disobedience is not casual, accidental or unintentional. The correctness of this approach is, of course, a critical issue in this appeal.
In the light of these complexities it is not surprising that the distinction between the two classes of contempt has been subjected to increasing scrutiny. The theoretical distinction between the two classes overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt, 2nd ed. (1983) say, at p. 3:
If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.
See also Canada Metal Co. Ltd. v. Canadian Broadcasting Corporation [No. 2]. There is, accordingly, a public interest in the exercise of the contempt power in cases of disobedience to an order, though Lord Diplock suggested in Attorney-General v. Times Newspapers Ltd., that “no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement”.
The unsatisfactory nature of the distinction is attested by the arbitrary classification of some instances of disobedience to an order as examples of criminal contempts. They include wrongful interference with a ward of a court, whether contumacious or not (Wellesley v. Duke of Beaufort; Scott v. Scott), disobedience to an order for delivery up of a child (Corcoran v. Corcoran, but cf. Reg. v. Barnardo), any breach of an order forbidding molestation of a person (Stourton v. Stourton) and contempts by officers of the court and others who have a special relationship with the courts, for example, solicitors (Seldon v. Wilde) and liquidators: In re Grantham Wholesale Fruit Vegetable and Potato Merchants Ltd. These instances of criminal contempt on the part of solicitors and liquidators may be explained on the footing that they involve disciplinary action against officers of the court.
A rather similar notion lies behind the cases in which disobedience to an order which is wilful or contumacious amounts to criminal contempt: see Morgan, per Barwick C.J., per Windeyer J. The point in these cases is that wilful disobedience to a court's order, especially if it occurs in circumstances where the conduct amounts to public defiance, involves a public injury and this calls into play a penal or disciplinary jurisdiction to deal with criminal contempt: Tony Poje v. Attorney-General (British Columbia); Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd.; Jennison v. Baker.
It is apparent from the foregoing discussion that very great difficulty has been experienced in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criterion which divides one class of contempt from the other. The extremities to which the distinction has sometimes driven the courts is strikingly illustrated by the absurd proposition, which derives some comfort from Seaward v. Paterson, that the defendant who disobeys an injunction granted against him commits a civil contempt whereas the stranger who aids and abets him is guilty of criminal contempt: see the criticisms of this proposition by Lord Atkinson in Scott, and by Cross J. in Phonographic Performance. The concept that disobedience to an order becomes criminal when the primary purpose of exercising the power changes from vindication of the rights of the plaintiff to vindication of the authority of the court is both complex and artificial. Salmon L.J. was right when he said in Jennison v. Baker, speaking with reference to the enforcement of an injunction generally, that “[t]he two objects are, in my view, inextricably intermixed”. When the defendant's disobedience is casual it may readily appear that the primary purpose of exercising the power is to vindicate the plaintiff's rights. On the other hand, when the disobedience is accompanied by public defiance it may as readily be seen that the primary purpose of exercising the power is vindication of the court's authority. But the classification in terms of primary purpose is a more complex and artificial undertaking when the punishment is for wilful disobedience unaccompanied by defiance. There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi-criminal in character, notwithstanding the adoption of the contrary view by some members of this Court in the decisions to which we have already referred.[35]
[35] AMIEU v Mudginberry Station Pty Ltd (1986) 161 CLR 98, 106-109.
In the more recent case of Witham v Holloway[36] the High Court indicated that it would look to removing the distinction between civil and criminal contempt in the future. Brennan, Deane, Toohey and Gaudron JJ explained that the essential basis of the distinction between civil and criminal contempt had been that civil contempt proceedings were coercive or remedial in the interests of a private individual and that criminal contempt proceedings were proceedings in the “public interest to vindicate judicial authority or maintain the integrity of the judicial process”.[37] Their Honours were of the view that this distinction was not a sufficient basis to treat the forms of the contempt differently:
[36](1995) 183 CLR 525.
[37]Ibid 531.
The distinction between proceedings in the public interest and those that are coercive or remedial in the interest of the private individual is not, in our view, a satisfactory basis for the distinction usually made between civil and criminal contempt. Even allowing for those orders which, if breached, involve criminal contempt and for contumacious breach, the distinction does not support the general proposition that breach of an order in civil proceedings is a civil contempt. That is because there are some circumstances in which the breach simply cannot be remedied. That can be illustrated by reference to the orders in this case. The order that the appellant not deal with his assets in a way that reduced their value below $200,000 could not be remedied once his assets were reduced in such a way that he was in no position to raise that, or any lesser sum of money, to satisfy the judgment debt. And when the contempt proceedings were commenced, ie after judgment had been entered and the appellant's total inability to satisfy the judgment ascertained, the purpose of the disclosure order could no longer be achieved.
At best, the distinction between proceedings in the public interest and proceedings which are coercive or remedial in the interest of the private individual supports a separate category of civil contempt to the extent that it clearly appears that the proceedings are remedial or coercive in nature. If that approach were to be adopted, it would follow that the contempt alleged in this case should have been classified as criminal, not civil, with the consequence the criminal standard of proof should have been applied. However, in our view, there are fundamental problems even with that approach.
One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.
Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.
Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a “penal or disciplinary jurisdiction” may also be called into play. It has been held that the “penal or disciplinary” jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. Thus, in Canadian Transport v Alsbury, Sidney Smith JA rejected the submission that settlement precluded further proceedings saying:
Are we to be told that after a party has defied a court, the court can still do nothing because the other party is willing to swallow the contempt? Nothing short of the clearest authority would convince me that that is the law; and there is no such authority and no such law.
And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown, their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri, that punitive and remedial objects are, in the words of Salmon LJ “inextricably intermixed”.
Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as “punitive” and others as “remedial or coercive”. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.
The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt “must realistically be seen as criminal in nature”. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.[38]
[38]Ibid 531-3.
In his separate judgement, McHugh J similarly found that the criminal standard of proof should be applied to the civil contempt. His Honour also indicated that he considered it appropriate to abolish the distinction:
The case for abolishing the distinction between civil and criminal contempts is a strong one. Moreover, it is a course of action that is open to this Court having regard to its duty to rationalise the principles of the common law. But, having regard to the argument that we heard, there is no need to consider whether we should take that step in this case. It is sufficient to say that in applying the standard of proof laid down in Peek, the Supreme Court erred.[39]
[39]Ibid 549.
In the recent UK case of OB v The Director of the Serious Fraud Office[40] Lord Justice Gross discussed the distinction between civil and criminal contempt as follows:
[40][2012] EWCA Crim 67.
The ordinarily somewhat arid distinction between “civil” and “criminal” contempt was explained, in general terms, by Lord Scarman in Home Office v Harman [1983] 1 AC 280 , at p.310, as follows:
“… The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much importance, but it does draw attention to the differences between on the one hand contempts such as ‘scandalising the court’, physically interfering with the course of justice, or publishing matter likely to prejudice fair trial, and on the other those contempts which arise from non-compliance with an order made, or undertaking required, in legal proceedings. The former are usually the business of the Attorney-General to prosecute by committal proceedings (or otherwise): the latter, constituting as they do an injury to the private rights of a litigant, are usually left to him to bring to the notice of the court. And he may decide not to act: he may waive, or consent to, the non-compliance. ”
In essentially similar vein, Lord Oliver, in Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 , at pp. 217–218, said this as to the distinction:
“…A distinction (which has been variously described as ‘unhelpful’ or ‘largely meaningless’) is sometimes drawn between what is described as ‘civil contempt’, that is to say, contempt by a party to proceedings in a matter of procedure, and ‘criminal contempt’. One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice – an intention which can of course be inferred from the circumstances.”
Although, as already indicated, we are not concerned with the classification of contempt in US law, the graphic passage in the majority judgment of Justice Breyer, in the US Supreme Court, in Turner v Rogers 564 US 10-10 2011, at p.8, helpfully illuminates the nature of the distinction:
“But the Sixth Amendment does not govern civil cases. Civil contempt differs from criminal contempt in that it seeks only to ‘coerce the defendant to do’ what a court had previously ordered him to do. Gompers v Bucks Stove & Range Co., 221 US 418, 442 (1911). A court may not impose punishment ‘in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order’. Hicks v Feiock, 485 US 624, 638, n.9 (1988) . And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free. Id., at 633 (he ‘carries the keys of [his] prison in [his] own pockets’….”
The earlier US Supreme Court decision in Gompers v Bucks Stove, referred to in this passage, itself contains a valuable analysis of the distinction between civil and criminal contempt. Giving the opinion of the Court, Mr. Justice Lamar said this (at pp. 441 – 443):
“Contempts are neither wholly civil nor altogether criminal…. But in either event, and whether the proceedings be civil or criminal, there must be an allegation that in contempt of court the defendant has disobeyed the order, and a prayer that he be attached and punished therefor. It is not the fact of punishment but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also…in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order….
It is true that either form of imprisonment has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindication of the court's authority. On the other hand, if the proceeding is for the criminal contempt and the imprisonment is solely punitive, to vindicate the authority of the law, the complainant may also derive some incidental benefit from the fact that such punishment tends to prevent a repetition of the disobedience. But such indirect consequences will not change imprisonment which is merely coercive and remedial, into that which is solely punitive in character, or vice versa.”[41]
[41]Ibid [22]-[25].
In my view the evident erosion between the two different forms of contempt militates against it being appropriate on an application for joinder of the Attorney-General to a civil contempt to refuse such joinder on the basis of the nature of the contempt, assuming it is otherwise just and convenient to allow such joinder. This is also so because all contempt cases are now subject to the same burden of proof and other safeguards applicable to criminal and quasi-criminal prosecutions, and can both be punished by fines or imprisonment.
The Attorney-General should not be prevented from joining this action just on the basis of the contempt being “civil” in nature, if the other factors necessary to warrant the proper exercise of the court’s discretion to order joinder are established.
Public interest in occasions of civil contempt
The Federal Court of Australia in Australian Building Construction Employee’ and Builders Labourers’ Federation v David Syme & Co Ltd[42] recognised that there was a public interest element in all occasions of contempt of court:
The functions which the two forms of contempt serve tend to overlap. Criminal contempt primarily exists to protect the due administration of justice in the public interest while civil contempt primarily exists to make the administration of justice effective for the individual litigant. There is, however, a public element in civil contempt since the administration of justice would be undermined if a specific order or direction of, or undertaking given to, a court of law could be disregarded with impunity (see per Lord Diplock in Attorney-General v. Times Newspapers Ltd.). While the primary function of criminal contempt is to serve the public interest, a private litigant may press a charge of criminal contempt against one whom he alleges has wrongfully interfered with the due administration of justice in his particular case.[43]
[42](1982) 59 FLR 48.
[43]Australian Building Construction Employees’ and Builders’ Labourers’ Federation v David Syme & Co Ltd (1982) 59 FLR 48, 49 (emphasis added).
Role of the Attorney-General in contempt cases
Attorney-General v Times Newspaper[44] is the leading authority regarding the role of the Attorney-General in contempt cases. In this case, the United Kingdom Attorney-General sought an injunction to prevent the publication of an article dealing with an ongoing court case concerning the impact of thalidomide. As such, it did not concern the enforcement of orders but rather that the publication of information prior to trial might prejudice the outcome. In that instance, the Attorney-General commenced the action against the Times Newspaper. The Attorney-General did not seek to be joined.
[44][1974] AC 273; [1973] EWCA Civ J0216-2
In a decision that was later overturned by the House of Lords, the Court of Appeal made it clear that it considered that it was inappropriate for the Attorney-General to bring the action. Lord Denning in the Court of Appeal explained why he considered that the party to the civil proceeding should bring the action for contempt, not the Attorney-General:
This is as it should be. When a man is on trial in a criminal Court, the Crown itself is a party. It is concerned itself to ensure the fairness of the trial. It is only right and proper that the Attorney - General should take the responsibility of proceeding for contempt of Court. But a civil action is different. The Attorney - General will, as a rule have no knowledge of the course of a civil action or of any interference with it - unless it is brought to his knowledge by one of the parties to it. If the Attorney - General then himself takes proceedings for contempt, it means that he is putting the authority of the Crown behind the complaint. No doubt he can do so if he things it proper to do so. But I venture to suggest that he should not do so except in a plain case. When the case is open to controversy or to argument, it would be better to follow the previous practice. The complainant should be left to take proceedings himself at his own expense and risk as to costs.[45]
[45][1973] EWCA Civ J0216-2, 5-7.
Lord Justice Phillimore added:
In a civil case, when the facts and issues are all important, why should the Attorney-General move? In the ordinary way it should be for the party who considers its interests affected to move the Court. The Attorney-General should only move in some quite unusual situation when he thinks he should do so in the public interest.[46]
[46][1973] EWCA Civ J0216-2, 15.
The House of Lords rejected this approach, and instead found that the Attorney-General could bring the action.[47] It found that the Attorney-General has a right to bring before the court any matter which he or she thinks may amount to contempt and which he or she considers should, in the public interest, be dealt with by a court and how. Lord Reid explained that:
[T]he Attorney-General has a right to bring before the court any matter which he thinks may amount to contempt of court and which he considers should in the public interest be brought before the court. The party aggrieved has the right to bring before the court any matter which he alleges amounts to contempt but he has no duty to do so. So if the party aggrieved failed to take action either because of expense or because he thought it better not to, very serious contempt might escape punishment if the Attorney-General had no right to act. But the Attorney-General is not obliged to bring before the court every prima facie case of contempt reported to him. It is entirely for him to judge whether it is in the public interest that he should act.[48]
[47] Attorney-General v Times Newspapers Ltd [1973] AC 273.
[48]Ibid 293-4 (Reid LJ).
Lord Morris of Borth-y-Gest similarly held that:
It was for the Attorney-General to decide whether to bring proceedings either in respect of the published articles or to seek to restrain the publication of the projected article though it would have been open to the Distillers company to initiate proceedings had they so decided. In considering the matters raised an Attorney-General would with complete impartiality solely be considering the public interest of maintaining the due administration of justice in all its integrity. I do not consider that when an Attorney-General decides that he ought to bring a matter to the attention of and the consideration of a court he is in any way identifying himself or his office with the interests of a party to litigation.[49]
[49]Ibid 306 (Morris LJ).
Lord Diplock, in his oft-cited judgement, drew a distinction between criminal contempt and civil contempt in the following terms:
One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a “civil contempt”. The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.[50]
[50]Ibid 307 (Diplock LJ).
It can therefore be inferred that Diplock LJ’s following comments about the role of the Attorney-General are made specifically in relation to cases of criminal contempt. In this regard, Lord Diplock held that:
I commend the practice which has been adopted […] whereby the Attorney-General accepts the responsibility of receiving complaints of alleged contempt of court from parties to litigation and of making an application in his official capacity for committal of the offender if he thinks this course to be justified in the public interest. He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown, as do Her Majesty’s judges themselves; but he acts on behalf of the Crown as “the fountain of justice” and not in the exercise of its executive functions.[51]
[51]Ibid 311 (Diplock LJ).
In the case before me, the passage immediately above is referred to by the Attorney-General as authority for the proposition that the Attorney-General has the right to intervene in cases of civil contempt if he considers it in the public interest. However, as I have mentioned, the remarks of Diplock LJ do not support that position because Diplock LJ was, it appears, in that statement addressing not civil, but criminal contempt.
In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union Of Australia (AIG)[52] the role of the Attorney-General was discussed by Merkel J of the Federal Court. In that case, the Defendant had failed to pay a penalty fine imposed for an earlier contempt of Court. There was dispute about who was the appropriate party to enforce the order to pay the penalty fine. The Plaintiff requested that the Attorney-General seek to enforce the penalty order. The Plaintiff contended that although it had obtained the order, enforcement was the responsibility of the Attorney-General and the Plaintiff was under no duty to enforce the penalty order.
[52][2001] FCA 0774.
The Attorney-General refused to accept such responsibility on the basis that punishment for contempt was a “private proceeding” concerning “private interests”, and it was not appropriate for him to intervene in private proceedings unless there were special circumstances where the court’s decision could impact on the legislative or executive powers or other direct interests of the Commonwealth. In AIG, Merkel J stated that:
[5] While there might be an issue whether the Attorney-General, rather than AIG or the District Registrar, has any duty to take steps to enforce the order, it is surprising that the Attorney-General has taken the view that a proceeding for punishment for contempt of the Federal Court is a “private proceeding” in relation to “private interests” and that when there is continuing wilful disobedience and public defiance of an order of the Federal Court that is not a matter that impacts on any “direct” interest of the Commonwealth.
[6] The Attorney-General's view is at odds with decisions of the High Court, which accept that contempts of this kind are criminal in nature.
…
[8] The Attorney-General's view of his role in relation to the judicial power of the Commonwealth is also at odds with longstanding authority that the Attorney-General is the appropriate officer of the state to represent and safeguard the public interest in vindicating the authority of its courts.[53]
[9] It is also difficult to understand how the Attorney-General could form the view that the failure to pay a $20,000 fine to the benefit of the Consolidated Revenue does not directly affect the interests of the Commonwealth.
…
[12] There is some support for the position taken by AIG. In Con-Mech (Engineers) Ltd v Amalgamated Union of Engineering Workers (Engineering Section) [1973] ICR 620 (“Con-Mec”) the National Industrial Relations Court (presided over by Sir John Donaldson) considered the practical problems that exist in the field of industrial relations in the penalty enforcement process. Con-Mech concerned an order sequestrating a union's assets to pay a fine for breach of a court order. The court stated at 625:
“As between the immediate parties the dispute may seem to be of a private nature, but it is rare indeed that it does not affect a large number of other people. In some cases it affects the community as a whole. Furthermore, far from the parties intending to avoid each other after the conclusion of the litigation, the whole context of the dispute will almost invariably concern the terms on which they shall work together in the future. In such circumstances, an aggrieved party to the dispute may well be prepared to seek an order of the court in support of his rights. But if that order is not at first effective, he is most loth further to exacerbate relations by bringing proceedings for contempt of court. It is at this point that the public interest is involved to a much greater extent than is the case in non-industrial disputes. Voluntary forbearance by a litigant to enforce compliance with a court order in a non-industrial context will not usually undermine the authority of the court. In the industrial context, such forbearance, which may well result from industrial pressure, will quickly give rise to a general belief that the orders of the court are unforceable. Such a result would be gravely injurious to the authority of any court and thus to the public interest”.[54]
[53][2001] FCA 0774.
[54]Ibid [5]-[12].
It should be noted that the case before Merkel J concerned criminal rather than civil contempt. This is because the respondent in the proceeding was in contempt having acted in wilful disobedience and public defiance of a Court order.
Special features of the instant case
In my view the alleged contempt detailed in the Boral Contempt Application may have an element of “public defiance” in the alleged failure to comply with the order of the Court.
The context of this case is, in my view, important. The Defendant is one of the most significant unions in Australia and represents a large number of persons employed in the construction industry, in the forestry industry and in the mining and energy industry.
The alleged defiance directly affects a major construction site and the building project on that site. This is likely in turn to affect the many persons working on and in connection with that building project, including supervisors, consultants and suppliers to the project as well as the contractor, and the proprietor undertaking the building project at the Regional Rail Link Project (“RRL”) at Footscray in Victoria.
The impact of the alleged contempts may well also extend to those who plan to occupy, operate and utilise the built facilities and infrastructure created by the RRL Project, including because the alleged blockade may well have delayed that project’s completion.
For the above reasons there is a real likelihood that the alleged contempt, if it occurred, has had, and may in the future have, a significant negative economic effect and a negative effect on many members of the community. In short the orders made prohibiting the blockade on 16 May 2013 arguably served a broader public interest than just Boral’s interest and any breach of those orders arguably gave rise to a broader public detriment than potential detriment to Boral alone.
It is also in my view significant that the subject contempt relates to a final order of the Court made on 16 May 2013. In my view the nature of the order in this case may well render any breach (if established) more substantial.
Is it in the interests of justice to allow the Attorney-General to join the proceedings?
The Defendant’s position
The Defendant submits that the Plaintiffs must discharge an onus to establish that it “just” for the Attorney-General to be joined as a party and submits that:
(i)The applicant seeking to make a charge of contempt bears the onus of proof, and must establish to the standard required in criminal proceedings that the charge or charges of contempt are established beyond a reasonable doubt. In this regard, the Defendant notes that it is entitled to put the prosecutor to its proof of evidence in the contempt proceedings, and that if the prosecutor fails to establish each required element of the charge to the requisite standard, then the Defendant is entitled to have the charge dismissed. The Defendant refers to important rights and ramifications relating to appeals in relation to civil and criminal contempts (Defendant’s Submission 27 September 2013 [1.2]).
(ii)The Defendant asserts that the Plaintiffs are well resourced and submits that it would be oppressive, prejudicial and therefore unjust to add a further set of “prosecutors” pursuing the Defendant in this proceeding;
(iii)The Defendant also says that it would be prejudiced by being exposed to “two prosecutors” each of whom who could appeal decisions made in the Defendant’s favour and, further, the Defendant notes that negotiating a resolution in the matter would be oppressive because it submits that the permission of both prosecuting parties would be required;[55]
(iv)The Defendant also alludes to the possibility of the Attorney-General seeking costs in the event of the liability case against the Defendant being proven, although this submission and its connection to prejudice to the Defendant is undeveloped in the Defendant’s submissions;
(v)The Defendant submits that the Attorney-General’s response to oppression arising in the proceeding, namely that such a potential risk can be alleviated by the court managing the conduct of the proceeding so as to avoid oppression or prejudice, is impractical. The Defendant submits that to alleviate the oppression arising from the involvement of two prosecutors in a quasi criminal proceeding it would, in effect, be necessary to preclude the Attorney-General from putting on evidence, asking questions of witnesses, making oral or written submissions, hindering any resolution, obtaining any order for costs, or exercising any power of appeal. Put another way, in substance there would be no role for the Attorney-General consistent with the requirements of justice in the circumstances;
[55]Defendant’s Submissions (dated 16 September 2013) [3.21]-[3.22].
The Attorney-General’s additional arguments
The Attorney-General’s submits that were he not joined he may lose the ability to commence proceedings where the plaintiffs for some reason ceased to prosecute the current contempt. The Defendant submits in response that any rejection of the joinder applied for by the Attorney-General, because it is not “just” for the court to make such an order, would not be likely to prevent the Attorney-General from commencing his own proceeding.
The Attorney-General contends that if he could be excluded from a current contempt application there might be consequences inconsistent with his role in protecting the administration of justice and upholding the authority of the court. He argues that such exclusion might give rise to the conclusion that the Attorney-General’s power to be involved in a civil contempt proceeding will be limited to the circumstances where the Attorney-General had brought an application first in time before any other interested person. This would mean that the Attorney-General would be treated no differently to a private party in a civil contempt application. The Attorney-General argues that this does not recognise his responsibility in relation to the proper administration of justice, including punishment for contempt.
The Attorney-General also submits that s 22(1)(c) of the Public Prosecutions Act 1994 assist in identifying the Attorney-General’s right to prosecute a civil contempt. The Defendant responds that s 22 of that Act is concerned with criminal contempts and does not aid the Attorney-General’s arguments. In my view s 22(1)(c) is a provision dealing only with defining the functions of the Director of Public Prosecutions and does not have the effect of itself vesting power in the Attorney-General to prosecute contempts. Further, the degree to which s 22(c) can be said to infer the assumption of a right in the Attorney-General to prosecute a civil contempt is so tenuous that it does not assist me in deciding this application.
Paucity of precedent to guide the court in relation to this sort of application
The Defendant submits that there is no binding or persuasive precedent for the Attorney-General’s joinder to a civil contempt proceeding.
The Attorney-General was however joined to Grocon’s application for contempt in Grocon[56] in similar circumstances to the present.
[56][2013] VSC 275.
The Attorney-General submits that in Grocon, the Court exercised its discretion to grant the Attorney-General’s application pursuant to Rule 9.06(1)(b) of the Supreme Court Rules to be joined as a party to two extant contempt applications brought by the plaintiffs in Grocon.[57]
[57]Ibid [3], [27] and [32] (Cavanough J).
The Attorney-General submits that in Grocon, the Court acceded to the proposition that, as a matter of procedure, the Attorney-General may also exercise his power to seek orders that a party be punished by contempt by way of joinder to an extant contempt proceeding brought by a private litigant.[58]
[58]Ibid.
I consider, with respect to the decision of Justice Cavanough, that the Grocon joinder orders entitle me to conclude that in that matter His Honour satisfied himself that:
(a)there may exist a relevant question arising out of, relating to or connected with a claim in the contempt proceeding, as between the alleged contemnor, the Defendant, and the Attorney-General;
(b)that the Attorney-General was a person with a “sufficient interest”; and
(c)it was just and convenient to determine that question as between the Attorney-General and the Defendant as well as between the Defendant and Grocon.
In my view Justice Cavanough’s ruling that the Attorney-General be joined to the Grocon proceeding against the Defendant in that matter does establish a precedent for such a joinder in a case which is very similar to the instant case and in a proceeding which Cavanough J characterised as, in form, a civil proceeding for contempt.[59] Although the application before his Honour was not opposed, his Honour’s decision was, I conclude, predicated on his Honour’s satisfaction that the requirements of Rule 9.06(b)(i) were satisfied and that in all the circumstances presented to his Honour, joinder was appropriate.
Reasons for decision - the exercise of discretion pursuant to rule 9.06 (b) (ii) of the Rules permitting joinder in appropriate circumstances
[59][2013] VSC 275 [13]
I am satisfied that there is a relevant “question” as required by rule 9.06(b)(ii) and as defined by rule 1.13(1) of the Supreme Court Rules in the case before me.
Rule 1.13(1) (as set out in full above) is couched in language which is broad and includes “questions” of fact or law, or mixed fact and law, and whether raised by the pleadings in the proceeding, or otherwise at any stage of that proceeding. Within that rule, a “question” may be raised by a party or by a non-party providing that party has “sufficient interest”.
In this application, I am persuaded that the Attorney-General has “sufficient interest” in the question and the issue for determination of the Court concerning the alleged contempts. If the subject contempts are made out, in my view it would clearly enliven the Attorney-General’s long-recognised responsibilities in relation to safeguarding the public interest in vindicating the authority of the courts.
In this application for joinder the Attorney-General submits that he has “sufficient interest” in both the liability and penalty phases of the subject proceeding. For the reasons referred to above I am satisfied that this submission is correct.
Further, in my view the context of the alleged contempt is one which provides justification for concluding that it is likely to be attended by a heightened level of interest on the part of the Attorney-General. This matter arose in relation to the construction site for a substantial building project, and is alleged to have been perpetrated by a significant Union representing construction, forestry, mining and energy workers. I refer to the special features of the instant case highlighted at paragraphs [71]-[75] of these reasons.
Further, as I have explained, it is likely that the alleged contempt in connection with the blockade on 16 May 2013 affected a large number of persons associated with the Regional Rail Link Project. In my view, there is a real risk that were the alleged contempts either not prosecuted to conclusion or otherwise properly prosecuted, this has the potential to engender a public perception that the orders of the Court may be disobeyed, particularly in the context of industrial action.
In essence, the allegation is that on 16 May 2013 the Defendant prevented the supply of concrete to the Regional Rail Link site by Boral. It is alleged the Defendant did so by blockading the entry of that construction site by means of parking or positioning motor vehicles in a way which prevented or obstructed access to the site by concrete delivery vehicles. It is alleged that this was in breach of the orders of this Court made on 7 March 2013 and on 5 April 2013 prohibiting such conduct.
Mr Stewart deposed to the industrial context of this dispute on behalf of the Attorney-General.[60] He expresses concern at the prospect of the Court’s authority being diminished in the eyes of the public, particularly in the context of an industrial dispute. He deposes that there is a possibility that the public perception will develop that in the industrial context court orders can be disobeyed with impunity because any sanction for such disobedience will be avoided as part of a wider settlement of underlying industrial disputes.
[60]Affidavit of Peter Stewart (sworn 4 September 2013), [6].
The Defendant argues that Mr Stewart’s affidavit itself provides no foundation for the Attorney-General’s “concern” and that, in any event, such a “concern” is not equivalent to an “interest” let alone a “sufficient interest”.
I am unpersuaded by the Defendant’s submissions in relation to Mr Stewart’s affidavit including its additional submission that Mr Stewart’s affidavit does not provide appropriate proof of what is asserted, even in an interlocutory context.
At the hearing of the Joinder Summons, the Defendant did not seek to exclude Mr Stewart’s evidence. In my view, Mr Stewart’s affidavit provides satisfactory evidence of the basis for the Attorney-General considering that the alleged contempt arguably impugns the authority of the Courts. Further, if the alleged contempt is established and not appropriately dealt with by the Court, in my view it has the added potential to erode the authority of the courts by fostering a perception that in an industrial context such orders may be disobeyed with impunity. This is because the civil contempt proceeding by which they are prosecuted is suspectible of being brought to an end before judgment as part of a wider settlement of the underlying dispute between the parties. The passage cited from Merkel J’s judgment in the AIG case in paragraph [102] illustrates the point made by Mr Stewart.
In my view the Attorney-General’s articulated concerns equate to the identification of a legitimate and public interest in ensuring, in appropriate cases, that disobedience in respect of a court order is dealt with by the courts and the authority of the courts thereby vindicated. I consider that in the circumstances of this matter, this public interest constitutes a sufficient interest on the part of the Attorney-General such as to enliven the court’s jurisdiction to exercise its discretion to join pursuant to rule 9.06(b)(ii) of the Supreme Court Rules.
The Defendant also argues that the time taken by the Attorney-General to initiate his joinder application militates against acceptance of the “concern” referred to in Mr Stewart’s affidavit. I do not accept this submission and I am unwilling to draw the inference that the delay between the alleged contempt and the Attorney-General’s issue of the joinder summons on 4 September 2013 affects the weight of the concern deposed to by Mr Stewart, or diminishes its cogency.
In AIG[61], a proceeding dealing with what appears to be a wilful and therefore criminal contempt, Merkel J commented on the impact on the interests of the Commonwealth and its Attorney-General arising from defiance of a court order. In that matter, the Attorney-General had not acted in relation to contempts constituted by continuing wilful disobedience and public defiance of orders of the Court, taking the view that the relevant proceeding for punishment for contempt of those court orders were “private proceedings” in relation to “private interests”.
[61][2001] FCA 0774.
His Honour highlighted the proposition, accepted by authority, that the Attorney-General is the appropriate officer of the State to represent and safeguard the public interest in vindicating the authority of the courts.[62] His Honour expressed the view that in that case the continuing failure to pay a fine imposed by the Court and payable to Consolidated Revenue, could be seen to directly affect the interests of the Commonwealth.[63]
[62]Ibid [8].
[63]Ibid [9].
Merkel J referred to what had been said by the National Industrial Relations Court when considering the practical problems that exist in the field of industrial relations in the penalty enforcement process,[64] and cited with approval that Court’s statement in Con-Mech ( Engineers ) Ltd v Amalgamated Union of Engineering Workers ( Engineering Section )[65] that:
As between the immediate parties the dispute may seem to be of a private nature, but it is rare indeed that it does not affect a large number of other people. In some cases it affects the community as a whole. Furthermore, far from the parties intending to avoid each other after the conclusion of the litigation, the whole context of the dispute will almost invariably concern the terms on which they shall work together in the future. In such circumstances, an aggrieved party to the dispute may well be prepared to seek an order of the court in support of his rights. But if that order is not at first effective, he is most loth further to exacerbate relations by bringing proceedings for contempt of court. It is at this point that the public interest is involved to a much greater extent than is the case in non-industrial disputes. Voluntary forbearance by a litigant to enforce compliance with a court order in a non-industrial context will not usually undermine the authority of the court. In the industrial context, such forbearance, which may well result from industrial pressure, will quickly give rise to a general belief that the orders of the court are unforceable. Such a result would be gravely injurious to the authority of any court and thus to the public interest.[66]
[64]Ibid [12].
[65][1973] ICR 620.
[66]Ibid 625
Having considered the above authorities, in my view there is no prohibition against leave being granted for the Attorney-General to join civil contempt proceedings such as the subject proceedings, provided the exercise of discretionary power of the Court to permit such a joinder is otherwise justified.
I do not accept the Defendant’s submission that it is instructive that the existence of a public interest in all contempts has not led to an institutionalised role for the Attorney-General in civil contempt proceedings.[67] This has usually occurred for the reasons alluded to in Lord Scarman’s speech in Home Office v Harman set out at paragraph [41] of these reasons, and for the reasons referred to by Winneke P in Dagi at page 124.
[67]Defendant’s Submissions (dated 16 September 2013) [3.10].
It is most unlikely that permitting the Attorney-General to join these civil contempt proceedings will result in a plethora of applications by the Attorney-General to prosecute contempts in relation to the disobedience of court orders. The Attorney-General’s application has been made in circumstances where “sufficient interest” is made out and the other considerations are sufficient to warrant the exercise of the Court’s discretion. Further, the Attorney-General can be expected to act reasonably and responsibly and therefore only seek to instigate or be joined to civil contempt proceedings where that contempt and its connection to the public interest is sufficient and where the circumstances otherwise warrant the Attorney-General’s involvement.
The justice of joinder of the Attorney-General in the circumstances
The Defendants submit that even a civil contempt is quasi criminal in nature,[68] and that, accordingly, special procedures and rights flow from the nature of a prosecution for contempt whether civil or criminal. Those special procedures include the entitlement of the alleged contemnor to put the prosecuting party to its proofs on the evidence. The Defendant also highlights other rights and procedures attendant upon the prosecution of a civil and criminal contempt. (Defendant’s Submissions dated 16 September 2013 [3.19] and Defendant Submissions dated 27 September 2013 [1.2] and [3.2]).
[68]Defendant’s Submissions (dated 16 September 2013) [3.19].
The Defendant argues that the Court should consider this joinder application on the basis that the Plaintiff will put the strongest case possible and that there is therefore no justification for the dual involvement of the Attorney-General and the Plaintiff.
However, many authorities, including what was said by Lord Scarman in Home Office v Harman[69] and the judgement of Merkel J in AIG[70], extracting what was said by the National Industrial Relations Court in Con-Mech (Engineers) Ltd[71], recognise that there is at least a risk that in the prosecution by a private party of civil contempt proceedings that party may decide not to continue to act, or may waive or consent to the non-compliance upon which the contempt proceeding is found. In addition, as Mr Stewart deposes on behalf of the Attorney-General, in an industrial context the contempt proceedings may be resolved by a wider settlement of the underlying industrial disputes.
[69][1983] 1 AC 280, 310 .
[70][2001] FCA 0774.
[71][1973] ICR 620.
For these reasons there is understandable and sound justification for the Attorney-General seeking to join these proceedings to ensure that they are both prosecuted to conclusion and that that prosecution is adequate.
The Defendant submits that it will be oppressive, prejudicial and unjust to add a further prosecuting party to the proceeding, including forcing the Defendant to respond to material produced by a second party seeking to prosecute the Defendant. The Defendant also says that it may be prejudiced by two sets of prosecutors each of whom could appeal decisions made in the Defendant’s favour and by the probable extra difficulties arising in relation to any negotiation between the parties in the proceeding if there were two prosecuting parties.
I recognise the general rule that a defendant should not be required to face two sets of prosecuting or plaintiff representatives: SCI Operations Pty Ltd v Australian Paper Manufacturers Ltd.[72] However, I consider that Court is well able to address each of the potential areas of oppression, prejudice and any resulting possible injustice as highlighted by the Defendant by orders and directions which ensure that, subsequent to the Attorney-General’s joinder, the proceeding is conducted justly without oppression and prejudice to the Defendant. On joinder of the Attorney-General, after hearing the parties, appropriate orders will be made to ensure that no such oppression or prejudice or any injustice arises in the conduct of the proceeding. Such orders will also necessarily take into account the relatively late introduction of the Attorney-General as a party to this proceeding.
[72](1983) 51 ALR 365, 373
The ameliorating orders referred to in the last preceding paragraph are unlikely to address what the Defendant submits is a potential difficulty for it in relation to the possible negotiation of the resolution of the proceeding. However, that is a matter which I consider falls outside the scope of legitimate submissions identifying arguable potential oppression and prejudice arising from the joinder of the Attorney-General.
In summary, I consider that the Court is well equipped to closely manage the conduct of the proceeding, and impose such conditions that ensure that the proceedings are conducted in a just and fair manner for all parties. I do not accept the Defendant’s submission that it is not practically possible to achieve this outcome.[73]
[73]Defendant’s Submissions (dated 16 September 2013) [3.24].
Is the proposed joinder convenient?
Convenience
Both the Attorney and the Defendant acknowledge that the Attorney-General must persuade the Court that it is likely that the joinder sought is both just and convenient, as required by rule 9.06(b)(ii) of the Supreme Court Rules.
The Defendant concedes that it is inconvenient for the Court to deal with two sets of litigation arising out of the same issues but observes that there is no separate proceeding on foot at this point, and adds that given the effluxion of time between now and the past events concerning the alleged blockade it appears that the Attorney-General has not contemplated initiating his own proceedings against the Defendant in relation to the alleged contempts.
The Attorney-General argues that the “convenience” identified as a criterion for the addition of a party pursuant to rule 9.06(b)(ii) of the Supreme Court Rules does not mandate the existence of a separate proceeding at the time of an application under that rule. The Plaintiffs submit, and I accept, that the rule does not require parties seeking to be joined to issue their own proceedings in respect of the relevant subject matter so as to qualify for joinder.
I also consider that it is relevant in the balance of convenience to consider that it would be possible for the Attorney–General to issue his own separate proceeding for contempt to prosecute the subject contempts. The Defendant’s submissions appear to recognise this possibility.[74] In the circumstances, I consider that it is convenient to the Court, and the parties to the potential separate proceedings, to grant this joinder application to obviate the possible issue by the Attorney-General of separate proceedings to address the same alleged contempts. I note, however, that I have given little positive weight to this last aspect of possible convenience.
[74]Defendant’s Submissions dated 16 September 2013, [3.26].
In relation to the Defendant’s submission that the Attorney-General has apparently not ever intended to commence his own proceeding in this matter, the Plaintiffs submit that the joinder application is in substance the bringing of proceedings for contempt by the Attorney-General. In the way the Attorney-General is approaching the issue, such proceedings will not have commenced until leave to join was granted. I am not satisfied that there is a proper basis to infer that the Attorney-General has never contemplated initiating his own proceeding for contempt as the Defendant submits. By early September 2013, at the latest, the Attorney-General decided to act in the matter. However, he chose to attempt to join the existing proceedings and not issue separate proceedings.
Attorney-General’s power to intervene in contempt proceeding
At this point, it is convenient to note the alternate claim to intervene brought by the Attorney-General and to record the parties’ differing positions on that aspect of this matter.
In the alternative to the Attorney-General’s joinder application, the Attorney-General seeks to be joined as an intervener in the Boral Contempt Application pursuant to the Court’s inherent jurisdiction[75] for the purpose of providing submissions (note: deleted footnote) and evidence if thought necessary. This application for intervention is supported by the “purposes” identified by the Attorney-General in the Contempt Summons in respect of the public interest in the proper administration of justice and seeking orders as to the proper disposition of the proceeding.[76]
[75]See Levy v State of Victoria (1997) 146 ALR 248, 256 – 257 (Brennan CJ).
[76]In light of the specific role of the Attorney-General in contempt proceedings, the observations in Priest v West [2011] VSCA 186, [26] and Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396 are not applicable.
In R v Anderson; Ex parte Ipec-Air Pty Ltd,[77] the High Court held that a State seeking leave to intervene must show that:
the decision of the court can have a bearing, or may have a bearing, upon the legislative or executive powers or other direct interests of the State…[78]
[77](1965) 113 CLR 177.
[78]Ibid 182 (Kitto J).
The Attorney-General submits the Court’s decision may have a bearing on the interests of the State, and the Attorney-General in particular, in particular, the Attorney-General’s obligation to:
(i)represent and safeguard the public interest in vindicating the authority of the courts;
(ii)protect the administration of justice;
(iii)protect the public interest in the enforcement of court orders generally;
(iv)secure compliance with all orders and undertakings whether or not compliance also serves individual or private interests, and so vindicate the court’s authority, in addition to, securing a remedial or coercive objective.
I accept the Attorney-General’s submission that there is a prospect that the Boral Plaintiffs may not fully present submissions on this penal or disciplinary jurisdiction for the benefit of the Court. Such a scenario could arise as a result of Boral settling the current contempt proceeding with the CFMEU, including as part of a wider industrial accommodation between the parties. I also accept that the private interests of the Plaintiffs in bringing the Contempt Summons are likely to be narrower than those of the Attorney-General, and this may well affect the manner in which the Boral Contempt Application is prosecuted or not in fact prosecuted.
The Defendant’s position on the Attorney-General’s alternative application to intervene pursuant to the court’s inherent jurisdiction is that the Attorney-General is unable to demonstrate that he has a relevant legal interest. The Defendant submits that in this matter the Attorney-General can point to no relevant legal interest which is affected rather than the identified public interest.
The Court’s jurisdiction to permit intervention may be exercised when it is satisfied that it is appropriate to grant leave to intervene,[79] and leave to intervene may be subject to such conditions regarding costs or otherwise as are necessary to do justice to the parties.
[79]See Levy v State of Victoria (1997) 146 ALR 248, 259 (Brennan CJ).
However, save for noting the above positions, because I am satisfied for the reasons addressed herein that the Attorney-General should be granted leave to be joined to this proceeding subject to appropriate orders to ensure a fair trial of the subject contempts, I do not consider that it is necessary to deal with and decide the Attorney-General’s alternative application to intervene and I decline to do so.
Decision
For the above reasons I allow the Attorney-General’s application to be joined as a party to the Boral Contempt Application pursuant to rule 9.06(b)(ii) of the Rules.
I shall, as soon as convenient, hear the parties as to both any question of costs and in relation to appropriate orders consequent upon the joinder of the Attorney-General.
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