Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd
[2013] VSCA 378
•13 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2013 0170 |
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| v |
| BORAL RESOURCES (VIC) PTY LIMITED (ACN 004 620 731) & ORS |
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JUDGES: | OSBORN and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 December 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 378 | |
JUDGMENT APPEALED FROM: | [2013] VSC 572 (Digby J) | |
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PRACTICE AND PROCEDURE – Application for leave to appeal – Contempt proceeding – Joinder of a party – Attorney-General – Standing of Attorney-General in relation to contempt proceedings – Decision below to join Attorney-General not attended with doubt – Application dismissed – Supreme Court (General Civil Procedure) Rules 2005 r 9.06(b)(ii) and O 75.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Morrissey SC with Ms R Shann | Slater & Gordon |
| For the 1st-6th Respondents | Mr S J Wood SC with Mr J L Snaden | Fisher Cartwright Berriman |
| For the 7th Respondent | Mr J B Davis with Ms R W Sweet | Victorian Government Solicitor’s Office |
OSBORN JA:
I will ask Beach JA to deliver the first judgment.
BEACH JA:
By a summons filed 22 August 2013 (‘the contempt summons’), the first to sixth respondents (‘the Boral respondents’), seek orders that the applicant be punished for contempt pursuant to Order 75 of the Supreme Court (General Civil Procedure) Rules 2005.
The alleged contempts are said by the Boral respondents to be constituted by the applicant’s disobedience of court orders made on 7 March 2013 and 5 April 2013. The asserted disobedience relates to the alleged maintenance by the applicant of a blockade to entry to a building site in contravention of orders not to do so. The alleged contempts also include allegations that the applicant failed to comply with court ordered administrative requirements, including the filing of material.
By summons filed 4 September 2013, the Attorney-General for the State of Victoria, the seventh respondent, sought orders that he be joined as a party pursuant to r 9.06(2) of the Rules. Alternatively, the Attorney-General sought leave to intervene in the proceeding pursuant to the Court’s inherent jurisdiction to permit such intervention in appropriate circumstances. The Attorney-General’s reason for seeking to be joined as a party or being permitted to intervene in the contempt summons was expressed below in the following terms:
The Attorney-General is concerned to avoid the development of a perception that the orders of [the Supreme 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.
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.[1]
[1]Boral Resources (Vic) Pty Ltd & Ors v CFMEU [2013] VSC 572 (‘Reasons’) [9].
The Attorney-General’s application was heard on 19 September 2013 by
Digby J. On 28 October 2013, his Honour granted leave to the Attorney-General to be joined as a party to the proceeding.
By summons filed 11 November 2013, the applicant seeks leave to appeal the order joining the Attorney-General as a party to the proceeding. Additionally, the applicant seeks an order that the appeal be heard instanter. The sole ground of the applicant’s proposed appeal is:
His Honour erred in finding that r 9.06(b)(ii) of the Supreme Court (General Civil Procedure) Rules 2005, which provides for the addition of persons to proceedings for claims, permits a person to be joined to a proceeding for a charge of contempt pursuant to Order 75.
Rule 9.06 of the Rules relevantly provides:
At any stage of a proceeding the Court may order that –
…
(b) any of the following persons be added as a party, namely –
…
(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;
In support of its application for leave to appeal, the applicant contends that r 9.06(b)(ii) does not permit a person to be joined to a proceeding for a charge of contempt pursuant to Order 75 of the Rules. The applicant advances two arguments in support of this submission. First, the applicant contends that the contempts with which it is charged are criminal contempts, and then says that ‘civil procedure does not apply to criminal contempts’. Secondly, the applicant submits that regardless of whether the contempt is classified as civil or criminal, even if some rules of civil procedure apply, r 9.06(b)(ii) does not apply to contempt proceedings because r 9.06(b)(ii) only applies to proceedings for ‘claims’, as distinct from ‘a proceeding for a charge’.
The applicant’s first argument is to be contrasted with an argument it ran below. At one stage during the hearing before Digby J, the applicant contended that the contempts were civil contempts.[2] From this it was then contended by the applicant that the Attorney-General did not have standing in relation to the matter, and that there was ‘no real precedent in Victoria’ for the joinder of the Attorney-General as a party to a proceeding in respect of a civil contempt. These submissions found no favour with his Honour – and in pursuing its first point, the applicant now contends that the contempts with which it is charged are criminal contempts.
[2]Reasons [25].
It may be accepted for present purposes that not all of the rules of civil procedure apply to a proceeding seeking to have a party adjudged guilty of contempt of court. A prime example of a rule which may not apply is a rule requiring an individual party to incriminate himself or herself by giving discovery. However, the mere fact that some rules of civil procedure may not apply in proceedings for contempt does not mean that none of the rules governing civil proceedings apply in such cases. Prima facie, the rules in Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 apply to proceedings brought under Order 75 in relation to alleged contempts of court. There is nothing in those rules that make them inapplicable to such proceedings. In this respect, the position under Order 75 may be contrasted with the position in New South Wales where different statutory provisions and rules apply.[3] Further, what was said by the High Court in Hinch v Attorney-General for the State of Victoria[4] is apposite:
Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.[5]
[3]Cf Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113.
[4](1987) 164 CLR 15.
[5]Ibid, 89.
While the operation of any rule of court that cuts across protections or privileges given to an accused facing criminal charges might need to be mediated so as to ensure a fair trial of those charges without the loss of relevant privileges and protections, r 9.06 is not a rule that comes within that potential class of rules. The Attorney-General has standing to bring a proceeding alleging the same contempts as are currently alleged in the contempt summons. The applicant accepts, and accepted below, that the Attorney-General has power to protect civil proceedings by applying for the punishment of contempts affecting those proceedings.[6] The only caveat the applicant placed on that proposition below was that this concession was only made in relation to criminal contempts. That caveat is no longer relevant – the applicant contending that the present contempts are criminal contempts. In any event, had it been necessary to determine, I would have determined that it is at least seriously arguable that the Attorney-General has similar standing to bring proceedings for civil contempts as he has to bring proceedings for criminal contempts. At the very least in my view, the question is sufficiently arguable to justify permitting the Attorney-General to intervene in a proceeding where a point in issue might be whether the contempt alleged is civil or criminal.
[6]Reasons [34].
As its second argument, the applicant submitted that r 9.06(b)(ii) only applies to proceedings for ‘claims’, as distinct from what it described as ‘a proceeding for a charge’. I reject this submission. The submission involves an overly narrow construction of the words ‘any claim in the proceeding’ in r 9.06(b)(ii).
Rule 9.06 is designed, amongst other things, to enhance the efficient and economic resolution of proceedings heard in the civil jurisdiction of the Court. The Rules generally (and this rule specifically) should not be given some narrow construction which would exclude from its operation any particular class of cases heard in the Court’s civil jurisdiction. The words ‘any claim in the proceeding’ are designed to pick up every type of claim that might be made in the civil jurisdiction of the Court by one party against another. In appropriate cases, one might envisage claims for injunctions or claims for declarations – including a claim for a declaration that a party be adjudged guilty of contempt of court.
It follows that in my view the judgment of Digby J is not attended with sufficient doubt to justify a grant of leave to appeal. If I was in any doubt about this, then I would also dismiss the application for leave to appeal on the ground that leaving the order below unreversed does not involve any relevant significant prejudice to the applicant. The Attorney-General having standing to commence a proceeding for criminal contempts (and at least arguably also in respect of civil contempts – although it is not necessary to decide that matter determinatively today), he could, in the absence of the order below, have commenced a proceeding against the applicant alleging the same contempts (although there is no question that the applicant could be punished twice in respect of the same matters). Such a proceeding would almost certainly be heard together with the contempt summons (in order to avoid a multiplicity of proceedings, and in order to ensure that both proceedings are conducted efficiently and economically). At trial, one would expect the various proceedings to be managed in a way that permitted each party’s interests to be dealt with appropriately – and without imposing any undue burden on the applicant.
That said, in my view, there would be nothing to be gained by requiring the Attorney-General to commence a separate proceeding – with potentially greater duplication and expense than might be occasioned by permitting the Attorney-General to be a party in the present proceeding.
His Honour could have chosen to let the Attorney-General intervene in the contempt summons. If his Honour had done so, then the Attorney-General would (subject to any other order) have enjoyed the rights of a party. Even if I was persuaded that his Honour’s order was attended by doubt (which I am not), I do not accept that leaving it unreversed occasions any significant prejudice to the applicant.
For these reasons, I would dismiss the applicant’s application for leave to appeal.
OSBORN JA:
I agree, for the reasons stated by Beach JA, subject only to the following additional matters.
For the reasons that his Honour states, Digby J had the power to make the order he did. A number of matters that were urged upon us this morning seemed to me to go to matters which might properly be thought to have affected the exercise of his Honour's discretion. A party faces a heavy burden in seeking to challenge the exercise of a discretion with respect to interlocutory orders in this Court.
Further, insofar as senior counsel for the applicant emphasised the possibility of oppressive results occurring as a result of his Honour's order, the basis on which leave was sought and obtained meets a number of the potential sources of oppression which were identified. In particular, joinder was sought so that the Attorney might obtain orders that the defendant be punished for contempt of court, expressly in accordance with the statement of the charge set out in the schedule to the plaintiff's summons and, secondly, so that the Attorney might make submissions and/or lead evidence in the application the subject of the plaintiff's summons to the extent only that such submissions and/or evidence do not duplicate those of the first six plaintiffs. These limitations provide a proper framework within which to prevent unfair procedural prejudice to the applicant.
I would dismiss the application for leave to appeal.
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