Burwood Council v Steve Nolan Constructions Pty Ltd ACN 07222854 and Stephen Michael Nolan
[2014] NSWLEC 54
•15 May 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Burwood Council v Steve Nolan Constructions Pty Ltd ACN 07222854 and Stephen Michael Nolan [2014] NSWLEC 54 Hearing dates: 11 September 2013; written submissions 13 and 20 September 2013 Decision date: 15 May 2014 Jurisdiction: Class 4 Before: Sheahan J Decision: (1) The first respondent's oral application of 11 September 2013 is dismissed;
(2) The question of costs is reserved; and
(3) The further disposition of the contempt proceedings will be considered by the List Judge on Friday 6 June 2014.
Catchwords: PRACTICE AND PROCEDURE: Application for summary dismissal of contempt charges for inadequate particularisation - level of "control" required - vicarious liability Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Blue Mountains City Council v Fowler [2007] NSWLEC 476
Bovis Lend Lease Pty Ltd v Construction Forestry Mining & Energy Union [2009] FCA 194; (2009) 254 ALR 306
Concrete Constructions Pty Limited and others v The Plumbers & Gasfitters Employees Union of Aust and others (No 2) [1987] FCA 117; (1987) 15 FCR 64
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758
Coward v Stapleton [1953] HCA 48; 90 CLR 573
Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225
Director-General Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73
Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510
Environment Protection Authority v Ableway Waste Management Pty Ltd [2005] NSWLEC 469
Environment Protection Authority v Caltex Refinery Co Pty Ltd [1993] HCA 74; 82 LGERA 51
Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70; 128 LGERA 240
Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738
Harmsworth v Harmsworth [1987] 1 WLR 1676
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Kirk & Another v Industrial Court of New South Wales & Another [2010] HCA 1; 239 CLR 531
Lade & Co Pty Ltd v Black [2006] QCA 294
Liverpool City Council v Palerma Pty Ltd and Parilo [2008] NSWLEC 311
Matthews v ASIC [2009] NSWCA 155
McDonnell v Novello [2006] NSWSC 1186
Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; 167 LGERA 91
Nambucca Shire Council v Mirage Property Group Pty Ltd [2008] NSWLEC 84
North Sydney Council v Moline & Tomkinson (No 2) [2008] NSWLEC 169
Parramatta City Council v Brickworks [1972] HCA 21; (1972) 128 CLR 1
Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147
Wakool Shire Council v Garrison Cattle Feeders Pty Ltd [2010] NSWLEC 199Category: Procedural and other rulings Parties: Burwood Council (Applicant)
Steve Nolan Constructions Pty Ltd ACN 07222854 (First Respondent)
Stephen Michael Nolan (Second Respondent)Representation: P McGuire, Barrister (Prosecutor)
J Johnson, Barrister (Respondents)
Houston Dearn & O'Connor (Prosecutor)
Storey & Gough (Respondents)
File Number(s): 41039 of 2012 and 41152 of 2012
Judgment
Introduction
Burwood Council has charged Steve Nolan Constructions Pty Ltd ("SNC") with contempt of orders made by this Court, in each of two cases involving the same parties, and this judgment concerns an oral application made by the defendant for the summary dismissal of the charges.
Council has lately joined a director of the company, Stephen Michael Nolan, as a second respondent in each substantive matter, but only "for the purpose of execution" (Tp1, L46).
The original proceedings were two of several matters which have concerned the building of a major project by SNC at 1-3 Railway Parade, Burwood.
One of the matters of present concern was commenced in this Court (12/41039), and the other in the Supreme Court, but the Supreme Court proceedings were transferred to this Court (becoming 12/41152).
Both substantive matters were fairly quickly resolved in this Court, and the respective consent orders were made by Pain J, on 16 November 2012. Council now charges alleged breaches of those orders by SNC as contempts of court.
The Notices of Motion and Statements of Charge for contempt were filed in each matter on 3 May 2013. Pleas of Not guilty were soon entered, and have been maintained. On 28 June, the two matters were set down for hearing together over two days, commencing 11 September 2013.
The prosecutor filed its evidence in both matters in late July 2013, but the defendant has filed none.
When the two contempt matters were called on for hearing on 11 September 2013, counsel for the respondents applied for the charges in both matters to be dismissed.
The grounds for such dismissal are not that the respective Statements of Charge are "duplicitous", but that they are "ambiguous" (subs par 21), "deficient" (Tp2, L39, and p7, L20), and "unfair" to SNC (Tp7, L19), in that the contempts pleaded did not define, and the prosecutor has not otherwise defined, any "actor", or even class of actor, through which the defendant company is said to have acted in contempt of the Court's orders. Clearly, there is capacity for dozens of independent contractors to be on the site at any one time, and for some of them to be engaged by public bodies like RailCorp, rather than by SNC.
As the Court and the prosecutor had no prior notice of this defence application, I allowed time for the prosecutor's counsel to formulate at least a preliminary oral response to the defendant's submissions. After that oral response, I granted leave to both parties to file further written submissions for the Court to consider, especially on the issue of "control".
The Consent Orders Made
In matter 12/41039, the principal order made (Order 2) was that SNC, "by itself, its servants, agents, contractors or assigns", be restrained from carrying out development on land comprising Lot 2301 in DP 1134547 and Lot 1 in DP 1140602, known as 1 and 1A Railway Parade, Burwood, otherwise than in accordance with conditions 18 and 19 of the relevant development consent, which was granted by this Court on 13 November 2006, and later amended by the Court on 15 May 2008 (emphasis mine).
Conditions 18 and 19 of that consent provide as follows:
18. No work involving the use of mechanical plant and equipment being carried out other than between the hours of 7am - 5.30pm Monday to Fridays and 7am - 1pm Saturdays, with no work at all being carried out on Sundays and Public Holidays.
19. Hours of construction work shall be from 7am to 5.30pm Mondays to Fridays inclusive, and from 7am to 1pm Saturdays. No construction work shall be carried out on Sundays. The owner-builder shall be responsible for the compliance of this condition by all sub-contractors, including demolishers.
In matter 12/41152, the principal order (again Order 2, but in different terms) was that SNC, "by itself, its servants, agents, contractors or assigns", be restrained from carrying out work in, on, or over Railway Parade Burwood, otherwise than with the consent of the applicant (again emphasis mine).
The Charges Brought
Matter 12/41039
The four particulars of the contempt charged in 12/41039 are that SNC disobeyed Order 2 in the following respects (some emphasis added):
1. On 12 February 2013 the Respondent by itself, its servants, agents, contractors or assigns carried out development at 1 and 1A Railway Parade Burwood otherwise than in accordance with condition 19 of the Development Consent granted by the Court on 13 November 2006 as amended on 15 May 2008, namely:
(a) About 6:30pm the Respondent carried out construction work at 1 Railway Parade Burwood outside the hours permitted by condition 19 of the said Development Consent.
2. On 26 February 2013 the Respondent by itself, its servants, agents, contractors or assigns carried out development at 1 and 1A Railway Parade Burwood otherwise than in accordance with conditions 18 and/or 19 of the Development Consent granted by the Court on 13 November 2006 as amended on 15 May 2008, namely:
(a) About 9:27pm the Respondent carried out construction work including work involving the use of mechanical plant and equipment outside the hours permitted by conditions 18 and/or 19 of the said Development Consent.
3. On 14 March 2013 the Respondent by itself, its servants, agents, contractors or assigns carried out development at 1 and 1A Railway Parade Burwood otherwise than in accordance with condition 19 of the Development Consent granted by the Court on 13 November 2006 as amended on 15 May 2008, namely:
(a) About 5:57pm the Respondent carried out construction work outside the hours permitted by condition 19 of the said Development Consent.
4. On 15 March 2013 the Respondent by itself, its servants, agents, contractors or assigns carried out development at 1 and 1A Railway Parade Burwood otherwise than in accordance with condition 19 of the Development Consent granted by the Court on 13 November 2006 as amended on 15 May 2008, namely:
(a) About 5:47pm the Respondent carried out construction work outside the hours permitted by condition 19 of the said Development Consent.
The common elements of the four particulars are: the formulation "by itself, its servants, agents, contractors or assigns", the description "construction work", and the allegation of a breach of condition 19 (with a breach of "conditions 18 and/or 19" in the case of 26 February).
Matter 12/41152
The two particulars of the contempt charge in 12/41152 were as follows (emphasis added):
1. On 21 February 2013 contrary to Order 2 of the said Orders the Respondent by itself, its servants, agents, contractors or assigns performed work in, on or over Railway Parade Burwood otherwise than with the consent of Burwood Council, namely:
(a) About 11.26am the Respondent blocked Railway Parade Burwood by way of traffic controllers so as to allow a truck engaged in the work of carrying, loading or unloading materials to and from the development site at 1 Railway Parade Burwood to manoeuvre onto the site.
(b) About 12:08pm the Respondent blocked Railway Parade Burwood by way of traffic controllers so as to allow the manoeuvring of a construction vehicle onto the development site at 1 Railway Parade Burwood and to allow a forklift engaged in work on the site to egress from the eastern end of the site and re-enter the site at the western end.
(c) About 3:27pm the Respondent blocked Railway Parade Burwood by way of traffic controllers so as to allow two trucks engaged in work on the development site at 1 Railway Parade Burwood to stand on Railway Parade and then for one of the trucks to manoeuvre onto the site.
(d) About 4:02pm the Respondent blocked Railway Parade Burwood by way of traffic controllers so as to allow a crane involved in work at the development site located at 1 Railway Parade Burwood to swing a load over Railway Parade Burwood.
2. On 26 February 2013 contrary to Order 2 of the said Orders the Respondent by itself, its servants, agents, contractors or assigns performed work in, on or over Railway Parade Burwood otherwise than with the consent of Burwood Council, namely:
(a) About 9:27pm the Respondent blocked one west bound lane of Railway Parade Burwood and performed digging work on Railway Parade at the corner of Railway Parade and Wynne Avenue at Burwood.
(b) About 9:27pm the Respondent blocked one east bound lane of Railway Parade Burwood and performed digging work on one east bound lane of Railway Parade Burwood in the vicinity of 1 Railway Parade Burwood.
The Respondents/Defendants' Submissions
The written submissions of Counsel for the respondent/defendants, Mr J Johnson, dated 13 September 2013, are stated to be on behalf of only the first respondent (the contempt defendant, SNC).
Their subheadings emphasize the need for liability for contempt to be grounded in notions or elements of "control" on the part of that company. He told the Court (Tp5, LL13-16):
It is a fundamental element of finding a corporation in breach ... that there be the sufficient element of control otherwise there is no disobedience.
He distinguished "control" from "authority" (e.g. Tp16; p21, L37; and p26, L27), and he accepts (Tp26, LL32-35) that "the buck stops with [SNC] for those actors ... over whom [it] has control".
He also submits (subs pars 1 to 12) that "it is a fundamental element of the charge for the prosecutor to establish the actor ... said [to be] in breach of the order ...". SNC cannot be held in contempt "for the actions of every person on the site", unless they come "within the control" of the company, and/or the company authorizes the action. That "control" may be assumed if the "actor" is an employee, but must be proved if a contractor.
Hence, Mr Johnson argues that the defendant must be told the identity of the person or entity it is alleged to have controlled, so that it can investigate the position and determine its plea and its approach to the charge(s) (see also Tp5, LL18-26). In his post-hearing written submissions, he said (par 21, 22 and 24):
21. ... the identity of the persons whom it is said carried out development or work on behalf of the Respondent is of fundamental importance for the respondent in knowing the case to be answered. There is unfairness if the ambiguity is left unresolved. But it is also of fundamental importance to the success of a prosecution for contempt. In the absence of the contractor being identified, the prosecutor cannot succeed in proving that the respondent had the requisite degree of control over that actor.
22. In the circumstances of this case there is no unfairness to the prosecutor in requiring particulars of the actor be provided. Those particulars, and the evidence in support of them, are necessary in any event in order for the prosecution to succeed.
...
24. The orders restrain the Respondent. The words "by itself its servants, agents, contractors or assigns" are a form of words which is regularly used in contempt orders. They perform the important role of highlighting to the respondent the breadth of its vicarious responsibility. The actus reus for the commission of a contempt against either order remains that it must be the Respondent, by any action of any actor for whom it is vicariously responsible, who either carries out development or carries out work respectively.
He added (in par 25):
25. The Court orders cannot and should not be construed as purporting to extend liability for the respondent beyond ordinary criminal liability principles, so that the respondent could be held liable without disobedience being alleged or proven, contrary to the authorities discussed ... above.
Mr Johnson explained to the Court that SNC had expected that the prosecutor might have sought to clarify its case before the hearing, by filing and serving submissions, in addition to its affidavit evidence (Tp3, LL30-4), and it elected not to make any request for, or bring any interlocutory application in order to obtain further particulars, on the basis that "it is for the prosecutor to ... make the case" (Tp3, LL36-49). Service of the prosecution evidence is no substitute for the provision of proper particulars (Tp24, LL16-40).
In the absence of such clarifying action, Mr Johnson argued that it was not incumbent on a respondent/defendant, who/which had pleaded not guilty to a charge, to seek further and better particulars from the prosecutor, who bears the onus of proof.
The Prosecutor's Response
Mr McGuire argues that the particulars in the Statements of Charge, and the information provided in the prosecution evidence, were sufficient for the defendant to decide to plead "not guilty", and so put the prosecutor to proof that the defendant should be held in contempt of court (Tp8, L1, and p18, LL40-2).
The charges are based on orders of the Court which are in "clear and unambiguous terms", and were made with the defendant's consent, on advice, and the law does not require the same high level of particularity in charges of contempt that it requires in criminal indictments (Tpp12-13).
In fact the statements of charge in this case did more than fulfil the established requirement that they must convey the "gist or substance" of the allegations; they went beyond that, to specify particular dates, times, places, and details of alleged offending conduct (Tp13, LL21-6, and p17, LL9-10), and even provided video showing faces and identifying vehicles (Tp17, LL43-4).
Mr McGuire said (Tp17, LL23-29):
... unlike [McDonnell v Novello ("McDonnell") [2006] NSWSC 1186] where it is suggested a plasterer went in at some stage during three days, [h]ere we have a date and a time and specific allegation that Railway Parade was blocked traffic controllers is particularised to allow a truck engaged in the work of carrying, loading and unloading materials, specific conduct to and from the development site and then there's probably not much doubt about this, the location of the breaches then set out 1 Railway Parade.
SNC "can have little doubt as to what is being alleged" (Tp17, LL31-2). There is no ambiguity, and no more is required of the prosecutor (Tp15, LL35-40); its efforts to have the people involved identify themselves have been unsuccessful, and such particulars/information are "peculiarly within the knowledge of the" defendant (Tp18, LL19-20), which was in "control" of this "huge construction site" (Tp18, LL5-6), and would be in a position to identify who was on site at the pleaded times (Tpp28-9).
The issue of "control", as put by the prosecutor, is "a red herring", Mr McGuire submits. It is no part of the offence, although relevant to penalty. Nonetheless he submits (pars 3-7) and (17-23) that, as "developer" and/or "principal contractor", SNC is "engaged in development", and "responsible for the overall co-ordination and control of the work". The terms "development" and "work" are clearly defined by s 4 of the Environmental Planning and Assessment Act 1979 ("EPA Act"), and explained in leading cases such as Parramatta City Council v Brickworks [1972] HCA 21; (1972) 128 CLR 1.
The Relevant Authorities
During the hearing of his application, Mr Johnson relied, primarily, on Kirk & Another v Industrial Court of New South Wales & Another ("Kirk") [2010] HCA 1, 239 CLR 531; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; McDonnell (above in [28]); Bovis Lend Lease Pty Ltd v Construction Forestry Mining & Energy Union ("CFMEU") [2009] FCA 194; (2009) 254 ALR 306; Concrete Constructions Pty Limited and others v The Plumbers & Gasfitters Employees Union of Aust and others (No 2) ("Concrete") [1987] FCA 117; (1987) 15 FCR 64.
In respect of the "control" point, Mr Johnson referred the Court, in his written submissions, to Environment Protection Authority v Caltex Refinery Co Pty Ltd ("Caltex") [1993] HCA 74; 82 LGERA 51, per Brennan J, at 74; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd ("McConnell Dowell") [2003] NSWLEC 70; 128 LGERA 240, at [83]-[86] per Pearlman J; Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) ("Issa") [2009] NSWLEC 232; (2009) 172 LGERA 225, at [79] per Biscoe J; North Sydney Council v Moline & Tomkinson (No 2) ("Moline") [2008] NSWLEC 169, at [16]-[20] and [114] per Preston J; and Director-General Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) ("Walker") [2010] NSWLEC 73, at [313] per Pepper J.
He has also referred the Court (in pars 14 to 17) to other contempt cases in this Court, namely Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd ("Cauchi") [2006] NSWLEC 738 (Biscoe J); Blue Mountains City Council v Fowler ("Fowler") [2007] NSWLEC 476 (Jagot J); Nambucca Shire Council v Mirage Property Group Pty Ltd ("Mirage") [2008] NSWLEC 84 (Sheahan J); Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd ("Pre-Cast") [2008] NSWLEC 147 (Sheahan J) and Liverpool City Council v Palerma Pty Ltd and Parilo ("Palerma") [2008] NSWLEC 311 (Biscoe J).
Cauchi, Fowler and Palerma all relied upon a statement by Keane JA (as His Honour was then) in Lade & Co Pty Ltd v Black ("Lade") [2006] QCA 294.
Mr McGuire, counsel for the prosecutor, relied, at the hearing, on Harmsworth v Harmsworth ("Harmsworth") [1987] 1 WLR 1676; Matthews v ASIC ("Matthews") [2009] NSWCA 155; and Mosman Municipal Council v Kelly (No 3) ("Kelly") [2009] NSWLEC 92; 167 LGERA 91; as well as Concrete; CFMEU; and McDonnell. He also quoted at length (in par 31) from the judgment of Lloyd J in Environment Protection Authority v Ableway Waste Management Pty Ltd [2005] NSWLEC 469.
He argued (Tp13, LL45-49) that Matthews "is powerful authority for the proposition that general criminal law authorities really don't assist Mr Johnson's application much, [as] there has been a watering down of the relevant standard and test for particulars in relation to contempt where the contempt alleged is the breach of an order that is known and unambiguous", and (Tp15, LL35-39) that Concrete establishes that when the allegation is of that nature "one really needs to do no more than identify the order and give particulars of the various acts and omissions which are said to constitute that contravention", and he submitted that the prosecutor has in this case done all that is required.
He acknowledged (Tpp16-17) that McDonnell "perhaps is the strongest authority" in support of SNC's application, but submitted that, as it involved a charge with numerous defects, including serious lack of specificity, it should be distinguished from the present situation, where there are detailed particulars in the charges, and extensive evidence has been filed and served.
He distinguished (pars 24-30) the relevance of many of the other authorities relied on by Mr Johnson, on the basis that they were not contempt of court cases, or that the orders involved (e.g. in Cauchi and Fowler) "did not expressly extend to the respondents' servants, agents, contractors or assigns".
He concluded his written submissions (pars 32-34):
32. The effect of the First Respondent's submissions on control are that the First Respondent could thwart the consent orders made on 16 November 2012, and frustrate the administration of justice, by electing to have work carried out by categories of workers whom it does not control. Such an absurd result is inconsistent with the clear and unambiguous terms of the consent orders and contrary to authorities on the purpose of punishment for contempt of court by breaching its orders.
33. The consent orders specifically set out the categories in relation to which the First Respondent consented to be bound. The provisions of the EPAA clearly extend the First Respondent's control and responsibility over the entire development and the entire building work.
34. The issue of "control" is expressly governed by the terms of the consent orders. Consequently the Plaintiff does not, in the specific circumstances of this case, need to particularise or prove control. The orders themselves have removed that need.
Consideration
In Mirage, I relied on Cauchi and Fowler as appropriate summaries of the well-accepted principles that this Court applies when dealing with charges of contempt. In Pre-Cast, I relied on all three of those cases, plus others (see my discussion of the cases at [21]-[27] and [37]-[39] of Pre-Cast).
In Palerma, Biscoe J said (at [15]) that Lade established that "there must be actual disobedience", and there can be no "disobedience where the breach of the order occurs by reason of circumstances outside the control of the alleged contemnor" (See Lade at [63]). That principle was applied, for example in Cauchi and Fowler, and, therefore, also in Mirage, Pre-Cast, and Palerma.
There are also well-established principles laid down to cover claims for relief from the alleged uncertainty, ambiguity, or "duplicity" of specific criminal charges - see Wakool Shire Council v Garrison Cattle Feeders Pty Ltd [2010] NSWLEC 199 - but fundamental principles of fairness must play a part in contentious situations of that type, and also in contempt cases such as this, and courts are considered to have an inherent power and responsibility to correct unfairness.
Each case turns on its own facts and circumstances, and some of the authorities to which the Court was referred need to be quoted at some length, because they deal with circumstances of some relevance to those in the present case.
Mr Johnson relies on the affirmation by the High Court in Kirk of the following important principles (at [26]-[27]), references omitted):
26. The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. ... the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged".
27. The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged.
In Johnson v Miller, the relevant statutory provision (s 181 of the then South Australian Justices Act) said (see footnote on 469):
It shall be sufficient ... if [any complaint] gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged.
Kirk quoted the judgments of Dixon and McTiernan JJ in Johnson v Miller, but Evatt J relevantly said in that case (at 494-8):
... Mr. Gillespie next announced that the prosecutor refused to supply any further or better particulars. Counsel for the appellant asked for the dismissal of the complaint, and, in a carefully reasoned judgment, the magistrate dismissed the complaint.
...
... the learned magistrate ...was justified in frustrating it. His action was justified in law upon two independent grounds.
In the first place, I consider that, in the circumstances, the complaint, as amended, although it related to one offence, did not give the defendant "a reasonably clear and intelligible statement of the offence or matter with which he is charged." ... [T]he positive statement in sec. 181 carries with it the negative proposition that a complaint which does not give the defendant information of the defined character may be treated as defective; in which case it becomes the duty of the court, pursuant to sec. 183, to cause the complaint to be amended. Further, I think that, when an amendment is rendered impossible because a prosecutor, after full consideration, refuses to give sufficient particulars, by which the complaint, when amended, will "give the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged," prejudice to the defendant has arisen from the defective complaint and the court is authorized to dismiss the complaint pursuant to the proviso to sec. 182.
... In the present case it is plain that the complaint was designedly left obscure, lest the defendant should obtain the very information which sec. 181 postulates as necessary.
...
... The court possesses an inherent authority to require that the particulars of a charge shall be furnished. ...It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. ... The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. ... [T]he prosecutor may be called upon to select his charge and particularize his complaint, and in the absence of the necessary information, and, as a last resort, the court has inherent power to dismiss the complaint. ...
I am therefore of opinion that, independently of the statutory authority for dismissing, the magistrate had also inherent power to dismiss the present complaint, and that he took the correct course in so acting.
In Concrete, Wilcox J dealt with contempt charges brought in eight related matters. The Statements of Charge (see [7]) listed the names of the thirteen employees who allegedly refused to carry out the orders which had been made. Claims were made (see [19]) of duplicity, and of insufficient specificity, in the event that the Court found, as it did, that contempt could be charged in respect of those orders. His Honour said (at [28]-[33]):
28. The second question is whether the statements of charge sufficiently specify the alleged breaches. I think that they do. In each case the charge sets out the relevant orders and then alleges, in positive terms, that the respondent did the enjoined act. In essence, the complaint is that, the respondent being told to refrain from particular conduct, the respondent in fact committed that conduct. This is a clear enough allegation. It is true that, without more, the respondent would not know whether it is the case of the applicant that it carried out some positive act amounting to breach, and if so what act, or whether it is said that there was a contravention by the failure of the respondent to take a positive step necessary to bring to an end the condition of maintaining the ban. But that is the function of particulars; and in each of these cases particulars were included in the charge. In relation to omissions it is difficult to do more than to say that no action was taken. But this is sufficient. The respondent then knows the case it has to meet and that it will be an answer to that part of the case to show, if it can, either that no positive action was, under the circumstances, required or that it did take the relevant step. Examples of this type of allegation are to be found in paras.(i) and (ii) of the Sabemo particulars, quoted above.
29. In the case of allegations of positive actions in contravention of an order particulars of a charge should inform the recipient of the substance of the case sought to be made. It is not necessary to set out the evidence which will establish that case; that will normally be contained in the affidavits. ...
...
31. It is an established principle of the criminal law that a single charge alleging the commission of a multiplicity of offences is defective. ... But a proceeding for civil contempt is not a criminal prosecution, notwithstanding some similarities in the standard of proof required and in the punishment which may be awarded. The principle of duplicitious pleading has no place in the law of contempt. As Fox J. said in Lazar v. Taito (Australia) Pty Limited [1985] FCA 35; (1985) 67 ALR 652 at p.655:
"The fact is, however, that what is charged is contempt of court in not complying with the relevant injunctions. The charges operate to indicate the injunction (or injunctions) relied upon, and to give brief particulars. The analogy between the charge required by the rules of court and a criminal charge is incomplete, because the person to whom an injunction is directed knows, with some precision, and specificity, what he is commanded not to do."
32. In each of the present cases the allegation against the respondent is that it has contravened the orders made against it on 13 March. Those orders have been identified by the statements of charge and particulars have been given of the various acts and omissions which are said to constitute contravention.
33. I see no defect in any of the statements of charge ...
In McDonnell, Gzell J had made an order in terms that two people called McDonnell "or any person, agent, or corporation acting under their authority or on their behalf be restrained from entering" a certain property to make "any improvements, renovations or additions".
Subsequently, the McDonnells were charged with contempt, and the Statement of Charge said that, "by their servants and agents", and in breach of the order, they had:
... entered into the Defendant's property for the purpose of undertaking work and did undertake that work.
PARTICULARS
Impeccable constructions [sic] undertook cladding work on the Plaintiffs [sic] house on the Defendant's property.
The matter then came before Barrett J, who referred to Coward v Stapleton [1953] HCA 49; (1953) 90 CLR 573, and Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510, and then quoted the following comment from the judgment of Lee and Finn JJ in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758, (at [25]):
25. ... The vehicle most commonly used to specify the conduct relied on to support the charge laid is the provision of appropriate particulars in, or annexed to, the statement of charge itself ([Concrete] at 73-4) If the statement of charge itself does not sufficiently specify the contempt, the affidavit evidence served with the statement cannot be relied upon to remedy the deficiency ([Harmsworth] at 1683)
Barrett J went on to say (at [26]-[35):
26. ... The crucial point is that a statement of charge must state particulars of the alleged contempt in such a way as to show precisely the acts or omissions said to constitute contempt. The person charged must be left in no doubt as to what breach is alleged. Where the order in question requires a particular act to be performed and the allegation is that the act was not duly performed, the particulars will, of their nature, generally be brief. But where, as in this case, the order precludes a particular course or kind of conduct "until further order", it is necessary that the statement of charge identify the precise acts of the alleged contemnor said to constitute the particular course or kind of conduct and thus to entail disobedience to the court's order.
27 The statement of charge filed by the defendant on 5 October 2006 made several allegations. The central allegation is that "[f]rom 25 September 2006 to 27 September 2006, the Plaintiffs by their servants and agents ... entered into the Defendant's property" and "did undertake" work. It is thus made clear that there is no allegation that either of the plaintiffs personally entered the property or did work. This is the force of the words "by their servants and agents". But those words also convey another message, namely, that several persons are alleged to have entered the property and done work. Each of "servants" and "agents" is in the plural and the two words are joined by "and". There is thus an allegation that entry was by several persons and that those persons consisted of "servants" in the plural "and" (not "or") "agents" in the plural. As a matter of plain language, therefore, the allegation is that at least four persons entered, being at least two servants and at least two agents - or, perhaps, that there were at least two persons, each of whom was both a servant and an agent.
28. None of these persons is identified. ...
29. In short ... the statement of charge does not put the plaintiffs fairly on notice in any satisfactorily informative way so at to let them know precisely which acts or defaults of theirs are alleged to amount to disobedience to the court's orders.
...
31. Apart from its hearsay quality, probably the most striking thing about the evidence is the entire absence of any basis for connecting the workman "Mark" with the plaintiffs - so as to bring him within the class of persons acting under the plaintiffs' authority or on their behalf ...
...
33. I do not accept that the appearance on behalf of the plaintiffs to defend the charge of contempt warrants any dispensation. Regard must be had to the substance and justice of the case. Two important matters of a fundamental kind stand out. First, it has not been shown by the defendant that the plaintiffs were aware of the terms of the orders of 25 September 2006 on that day or on either of the two immediately following days. The contempt alleged against the plaintiffs involved events said to have occurred within that period of three consecutive days. Second, the statement of charge did not fairly and adequately alert the plaintiffs to the particular acts and defaults alleged against them. I need not refer further to the imprecision of its terms and its failure to identify any physical act of an identified person.
...
35. An allegation of contempt of court is serious and not to be made lightly. It may lead to loss of liberty. It behoves anyone pursuing such an allegation to do so with precise attention to all matters going to due process.
In Kelly, Biscoe J said (at [66]-[67]):
66. The fundamental principle underlying a statement of charge is one of elementary justice, as stated in Coward v Stapleton [1953] HCA 48, (1953) 90 CLR 573 at 579-580:
"...it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him...The gist of the accusation must be made clear to the person charged...
Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon."
67. The principles relating to the formulation of a statement of charge were summarised by the Full Federal Court in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, (2005) 221 ALR 823 at [32] as follows (omitting citations):
"(a) appropriate safeguards must be applied to protect the rights of parties accused of contempt;
(b) parties accused of contempt are entitled to know the gist or substance of the charges against them;
(c) where there is a Statement of Charge, the gist or substance of the allegations must be contained within the Statement of Charge and any particulars, and any deficiency cannot be remedies [sic] by resort to affidavit evidence;
(d) ...
(e) ...
(f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them; and,
(g) ..."
A few days after Kelly, the Court of Appeal delivered its judgment in Matthews. Tobias JA, analysed (at [44]ff) many authorities relevant to this present case:
44. The particularity required of a charge of contempt was also emphasised by Sir John Donaldson M.R. in Chiltern District Council v Keane [1985] 1 WLR 619 at 622 where his Lordship said:
"The notice of motion was personally served on Mr Keane, but it only stated the grounds of the application to commit in general terms. It recited the undertaking and the injunction, and then alleged that there had been a breach. This, on the authorities, is not sufficient. It has been said in many cases that what is required is that the person alleged to be in contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes a contempt of court."
45. The foregoing statement was cited with approval by Nicholls LJ in [Harmsworth]. In the same case, Woolf LJ made the following observation at 1686 which is pertinent to the present case:
"What is not required by the relevant rules is that the notice of the motion should be drafted as though it was an indictment in criminal proceedings. While a respondent is required to be given particulars of what is alleged to be the breach, the particulars do not need to be set out in the same way as separate counts have to be set out in an indictment, nor do they need to give the particulars that you would normally expect to be seen in a count in an indictment. Furthermore, in my view, rules of duplicity and other rules which are designed to ensure the fairness of a trial before a jury, do not apply to proceedings of a different nature which are brought in respect of an alleged contempt."
His Honour then quoted from McDonnell and Concrete, and then, at some length, from CFMEU, in which Tracey J said (at [60], [64] and [65]):
60 The substance of the first charge is that the CFMEU failed to
comply with Marshall J's order that it remove any vehicles over which it had control which were impeding access to the site. In substance it was alleged that no action was taken to disturb the status quo. This, as Wilcox J held in Concrete Constructions, is sufficient for the purposes of a charge. Although it was not strictly necessary for it to do so Bovis provided particulars of some of the vehicles which were impeding access to the site and identified various officials of the CFMEU who were present. It was not obliged, in my view, to go further.
...
64 I have already held that the order was expressed with the necessary clarity. The second charge, in substance, alleges that the CFMEU had, acting as it must through servants or agents, performed acts which had been enjoined by the order. The allegation is, I consider, made with sufficient clarity. The particulars subjoined to the charge identified some of the vehicles which, it was said, were so parked as to interfere with and impede access to the site. Paragraph (b) of the particulars does not allege that, what is described as a "blockade or picket" was "an act". Rather, the "act" identified in the paragraph was maintenance of the blockade or picket, utilising the cars and the tents. There was no need to provide further particulars as to who erected the obstacles, how long they were in place and how they caused obstruction or interference. These were matters for evidence.
65 In my view, each statement of charge was, when the charge is read as a whole, sufficient to convey the gist or substance of the breaches of Marshall J's orders which were alleged by the prosecutor.
Tobias JA then said of CFMEU:
55. With respect to the second charge his Honour found (at [91]) that he was satisfied that
"each element of the second charge has been established beyond reasonable doubt, but only in respect of the incidents on 19 and 23 February 2009 when vehicles were prevented from entering the site."
However, when dealing with the evidence in support of the second charge his Honour found (at [88]) that "many vehicles which were registered to the CFMEU" were parked on the relevant driveway. But he did not make a specific finding that those vehicles included the four in respect of which registration details were provided in the particulars.
56. However, of some relevance is the fact that even though the second charge alleged breaches on 20, 21 and 22 February 2009 "and continuing", his Honour found the charge proven with respect only to incidents on 19 and 23 February. In other words, the charge alleging breach of the Court's order was made out if on only one of the dates specified in the charge the CFMEU maintained an obstruction or interference to the RCH site and this was so notwithstanding that the charge alleged obstruction or interference on a number of other occasions.
Mr Johnson says of CFMEU (in his submissions at pars 18-20):
18. The relevant charge in [CFMEU] (see at [19]) was that 'the CFMEU has maintained an obstruction ...'. The charge did not allege that the CFMEU acted in a capacity other than through its officials (see at [67]).
19. While the evidence cannot be used to provide missing particulars, it is instructive to observe that in [CFMEU], the evidence was that the CFMEU itself, the actors being CFMEU officials as the embodiment of the company, had carried out the positive actions in breach of the Court's order; see [82] line 1, [83] line 1, [84] line 1, [85] line 1-2. There was for example no allegation in the charge that any contractor had carried out work and no evidence to that effect.
20. The union had no control of the 'site' in [CFMEU]. It was particularised that it had control over vehicles (whose registration numbers were particularised), which were one of the relevant means of maintaining an obstruction. The charge being against the CFMEU itself, control of the officials of a body is implicit and assumed and did not need to be particularised. As noted above, no allegation was made as to contractors being actors in [CFMEU]. By contrast, control of an independent contractor is assumed to be absent unless proven; see the authorities at [8]-[9] above. There is a world of difference between the circumstances in [CFMEU] and those in this case. In particular there is the capacity to be dozens of independent contractors at any one time on a large building site, including contractors engaged for or by public or state owned corporations such as Railcorp.
Mr Johnson's submissions then concluded:
21. It is apparent from the above discussions that the identity of the persons whom it is said carried out development or work on behalf of the Respondent is of fundamental importance for the respondent in knowing the case to be answered. There is unfairness if the ambiguity is left unresolved. But it is also of fundamental importance to the success of a prosecution for contempt. In the absence of the contractor being identified, the prosecutor cannot succeed in proving that the respondent had the requisite degree of control over that actor.
22. In the circumstances of this case there is no unfairness to the prosecutor in requiring particulars of the actor be provided. Those particulars, and the evidence in support of them, are necessary in any event in order for the prosecution to succeed.
23. ...
24. The orders restrain the Respondent. The words 'by itself its servants, agents, contractors or assigns' are a form of words which is regularly used in contempt orders. They perform the important role of highlighting to the respondent the breadth of its vicarious responsibility. The actus reus for the commission of a contempt against either order remains that it must be the Respondent, by any action of any actor for whom it is vicariously responsible, who either carries out development or carries out work respectively.
25. The Court orders cannot and should not be construed as purporting to extend liability for the respondent beyond ordinary criminal liability principles, so that the respondent could be held liable without disobedience being alleged or proven, contrary to the authorities discussed ...
Conclusion
Despite the wide range of differences among the cases, consistent principles clearly emerge from them.
In applying those principles, a distinction must be drawn between what the prosecutor has to plead, or to particularise, and what it has to prove beyond reasonable doubt in order to succeed on that charge.
As Mr Johnson noted (Tp22, L44), a prosecutor can't rely on res ipsa loquitur to prove contempt, and (Tp23, LL41-3) a defendant has no obligation to alert a prosecutor to any problems the defendant observes in a charge brought against it. The situation in Wakool ([42] above) was that the defendant chose to point out a defect, and suggested it might be cured by particulars, but found it was not, and brought an application based on duplicity (Tpp23-4).
I accept the prosecutor's submissions (1) that SNC consented to specific categories of "actors" in respect of which it agreed with the Court to be bound under the orders made, and (2) that SNC, as "developer" and "principal contractor" under the EPA Act, had full control of the site, access to the site, and the development and the work, at the pleaded times and locations.
The prosecutor says that it particularised its charges as best it can, after a full investigation, and it has disclosed most, if not all, its evidence.
I can see no authority which indicates that I should summarily dismiss its charges. I consider that the first respondent/defendant has been provided with "fair information and reasonable particularity", and more than the "gist or substance", of its alleged breaches, as required, for example, by Kirk (at [26]), Johnson v Miller (quoted in [46] above), and Matthews.
The Court makes the following orders:
(1) The first respondent's oral application of 11 September 2013 is dismissed;
(2) The question of costs is reserved; and
(3) The further disposition of the contempt proceedings will be considered by the List Judge on Friday 6 June 2014.
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Decision last updated: 15 May 2014
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