Hamersley Iron Pty Ltd v Lovell - [2000] WASCA 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: HAMERSLEY IRON PTY LTD -v- LOVELL & ANOR [2000] WASCA 208

CORAM: KENNEDY ACJ
WALLWORK J
MURRAY J

HEARD: 13 & 14 JUNE 2000

DELIVERED : 7 AUGUST 2000

FILE NO/S: CIV 1167 of 1998

BETWEEN: HAMERSLEY IRON PTY LTD (ACN 004 558 276)
Applicant
AND
AVON FRANCIS LOVELL
First Contemnor
COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED WORKERS' UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH
Second Contemnor

Catchwords:

Practice and procedure - Motion for contempt of court - Decision as to admissibility of affidavit evidence adduced by contemnors - Turns on own facts

Legislation:

Nil

Result:

Rulings on admissibility of affidavits made

Representation:

Counsel:

Applicant:     Mr J Gilmour QC & Mr J R B Ley
First Contemnor            :     Ms C J McLure QC & Mr J Courtis
Second Contemnor       :     Ms C J McLure QC & Mr J Courtis

Solicitors:

Applicant:     Freehill Hollingdale & Page
First Contemnor            :     Wojtowicz Kelly
Second Contemnor       :     Wojtowicz Kelly

Case(s) referred to in judgment(s):

AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316

Case(s) also cited:

Nil

KENNEDY ACJ, MURRAY J: This judgment is interlocutory in nature, given during the hearing of a motion for contempt. The subject matter of the motion is two publications allegedly produced by the second contemnor, containing material of which the first contemnor is alleged to be the author, the publications being allegedly by, or with the assistance of, the first contemnor, an industrial advocate employed by the second contemnor, to whom it will be convenient to refer as the "CEPU".
The proceedings are of course conducted before the Full Court. The evidence is by affidavit. There is a vast amount of such material filed by both the applicant and the contemnors comprising in all, including the various exhibits to the affidavits, some 880 pages of documents. This judgment is concerned with two further affidavits, both sworn by Mr Lovell, to the admission of which the applicant objects.
The hearing of the motion for contempt is not yet concluded. It has been adjourned and a date will have to be set when the Court can be reconvened to complete the hearing. If the affidavits are held to be admissible, the applicant says that it will require time to consider its position and in all probability it will seek leave to adduce further affidavits itself. Perhaps further delay is of little moment in view of the long history of the matter and the circumstances of the litigation between the parties generally.
To enable the Court to understand how the contemnors proposed to use the affidavits, we admitted them provisionally and permitted argument to be addressed in reliance upon them. Before giving our decision on their admissibility we should say a little more about the motion for contempt, its character, and the issues to which it gives rise.
In June 1992 there was apparently a strike of workers who were members of the CEPU and employees of the applicant. A committee of management personnel was established by the applicant and called the "Force Majeure Committee". It met and minutes were taken. Those of one particular meeting are referred to as the "FM Committee Minutes". Shortly after that meeting was held, members of the applicant's management met with its legal advisers. Notes were taken of the discussion at the meeting. They are handwritten and in the contempt proceedings are simply referred to as the notes.
The strike had ended by the end of June 1992, but by then the applicant had sued a number of unions, including the CEPU, and a number of union officials, including officials of the CEPU, but not including Mr Lovell. There are a number of causes of action, including trespass, inducing or procuring breaches of employment contracts by the applicant's workers and conspiracy. Permanent injunctions, interlocutory injunctions and substantial damages are sought for the alleged loss of production and sales by the applicant, which is an iron ore miner in the Pilbara region.
That litigation continues. Its history need not be discussed in detail here, but the process of discovery by the applicant should be mentioned. The FM Committee minutes and the notes were discovered and unsurprisingly, legal professional privilege was claimed in respect of the notes. That occurred in 1994. It was not until June 1997 that Mr Lovell and Mr Courtis, junior counsel for the contemnors before us and a member of the firm of solicitors acting for the CEPU, inspected the discovered documents. They were provided with copies of certain documents, including, inadvertently, the notes, despite the claim of privilege made therefor.
Certain of the content of those and other documents obtained on discovery were published in a variety of ways by the CEPU and Mr Lovell, who admitted being involved in the publication. In November 1997 Mr Lovell was interviewed on ABC regional radio and on the following day an account of that interview was published in a newspaper circulating in the Pilbara, known as the "North West Telegraph". In December 1997 the CEPU Hamersley Brief No 1 and the CEPU Hamersley Brief No 2 were both published.
The applicant immediately brought an application for contempt in the course of which, by consent, on 24 December 1997, an undertaking was given by the contemnors to refrain from any further publication of discovered documents. That first application for contempt, instituted in December 1997, was heard in March 1998 and on 22 May 1998 the Full Court gave its judgment finding the contemnors guilty of contempt, both by reason of the breach of an implied undertaking to the Court which prevents the disclosure of the contents of discovered documents, except for legitimate purposes concerned with the prosecution of the action in which the discovery takes place, and by engaging in conduct calculated to interfere with the proper administration of justice in the principal litigation. It was held in relation to the latter form of contempt that the purpose of publication was to publicly ridicule and place pressure on the applicant as the plaintiff in the principal litigation and to intimidate potential witnesses.
In the meantime, in January and February 1998 CEPU Hamersley Brief No 3 and CEPU Hamersley Brief No 5 were respectively published. These contempt proceedings were then commenced with respect to those publications. Immediately that was done Mr Lovell applied, unsuccessfully, for leave to withdraw the undertaking given to the court on 24 December 1997.
The issues in these proceedings are wider than those arising in the first contempt proceedings. Apart from technical questions about the manner in which the proceedings were instituted and the effectiveness of a document of particulars of contempt incorporated in the notice of motion by reference pursuant to an order made by Anderson J on 11 March 1998, the issues are whether either or both of the contemnors were so connected with the publication of each of the Briefs in question as to render them liable for contempt, and whether either or both publications constituted an act of contempt in that either or both publications contained material published in breach of the implied undertaking attaching to the use of discovered documents or were publications calculated to prejudice the proper administration of justice in the principal action.
Against that background we turn to the affidavits to which objection is taken. They are both sworn by Mr Lovell on 12 June 2000. The first is the vehicle to annex a number of documentary exhibits. To some such documents no objection was taken, although with respect to one or two of them, their relevance was queried. In our view, to the extent that the affidavit exhibits those documents, it may be admitted in evidence. The documents in question here are the notice of motion instituting the first contempt application, a document which sought to consolidate the particulars of contempt as part of a process of endeavouring to incorporate the present application for contempt in the first so that it all might be heard together (an application which was unsuccessful), and a copy of the transcript of an application for special leave to appeal to the High Court from the decision of the Full Court upon the first application for contempt, which decision is itself reported as Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316.
Objection was taken to the admission into evidence, as an exhibit to Mr Lovell's affidavit, of an affidavit sworn by a Mr Cronin which itself exhibits the rules of the CEPU. Those rules clearly have a potential relevance in a number of ways, including to demonstrate the structure of the union, to inform the Court about its processes, and in respect of what is asserted to be an obligation of the management of the union to keep its membership informed of matters relevant to that membership and to the industrial relations activities of the union.
Objection is also taken to exhibits "B" and "C", which are 20 page financial statements of the CEPU for the calendar years 1997 and 1998. The purpose of seeking to adduce this material is said by counsel for the contemnors to be to establish that the primary source of funds to the union was, at least at the time relevant to the alleged publications, members' subscriptions. Presumably it is said that in that event the obligation of the management of the union to keep the membership fully informed of its activities is enhanced. In our view exhibits "B" and "C" to Mr Lovell's affidavit are insufficiently relevant to warrant their admission into evidence.
However, we would admit evidence of the rules, which have a bearing upon an issue which was raised, but not determined, in the first contempt proceedings. In his judgment in that case at 335 ‑ 336, Anderson J touched upon the point when he remarked upon the suggestion during argument that the publications were made for proper purposes, such as to inform members of the progress of litigation or to support proper complaints of bias to relevant industrial tribunals and authorities. As his Honour said such matters would not afford a defence, but of course, they might be relevant to penalty.
In any event no such issue arose in the first proceedings because, as Anderson J noted, the evidence was that in respect of each of the discovered documents the publication and use of it went well beyond what could reasonably have been thought to be a proper purpose, publication not being confined to members of the CEPU. But his Honour went on to express an obiter view upon the point. He said:
"I do not subscribe to the view that it would not be a breach of the undertaking. I do not consider a body such as an industrial union or corporation which is engaged in litigation is permitted under the terms of the implied undertaking [to] circulate to its membership documents disclosed to it in discovery. The individual members of the body are not parties to the litigation, nor do they stand at any special position (legal advisers, professional consultants, expert witnesses, decision makers etc) such that disclosure to them is a necessary part of the litigation process."
Counsel for the contemnors puts to us that the issue is or may be live in these proceedings, depending upon the extent of the publication, if any, for which the Court may hold either or both of the contemnors responsible. It is desired to argue the point given the nature of the evidence before the Court as to the process of publication. We think that has always been open and that secures the admissibility of the union rules, although not, as we have said, the evidence in the form of financial statements relevant to the period in question.
The second affidavit in issue relates to the process of negotiation between counsel and solicitors for the parties and Mr Lovell immediately prior to giving the undertakings on 24 December 1997, to which we have broadly referred as undertakings not to publish further the content of discovered documents. It is desired in this affidavit, as we understand it at least, to explain why Mr Lovell entered into the undertakings and his belief that the applicant was fully aware of the position he took which would enable him to give the undertakings in the form provided, while reserving the capacity to himself publish, or assist the CEPU to publish, references to the discovered documents for particular limited purposes of the kind referred to above.
There is an argument about the meaning of the undertakings given. They are said by the applicant to be part of the ground for the asserted contempt in that it is put that the Court should conclude that the publications in question were in breach of the order recording those undertakings. For that purpose the terms of the order would need to be clear on their face and if there was any ambiguity, they could not be relied upon in the manner advanced for the applicant. So the process of interpretation is not at all like that of the process of construing a contractual document.
The process of interpretation in this case will depend upon the Court's view of the meaning of the undertakings embodied in the order of the Court. In our opinion it is irrelevant to that question that Mr Lovell had some belief about what the applicant's legal representatives understood to be the meaning and effect of the undertakings to be provided to the Court. Further, Mr Lovell's belief as to what was permitted within the framework of the undertakings given can in our opinion have no relevance to the establishment of the alleged contempts. We hold this affidavit to be inadmissible in its entirety for that purpose. It is, however, capable of being relevant in relation to any penalty if a contempt is established in this case.

WALLWORK J: The facts of this matter are set out in the draft reasons of Kennedy ACJ and Murray J, which I have had the advantage of reading.
I take a different view to their Honours in that I do not think that Mr Lovell's belief concerning the outcome of the discussions between himself and the applicant's legal representatives prior to the relevant undertakings being provided to the Court, is irrelevant to the questions to be considered by this Court. I would hold Mr Lovell's affidavits to be admissible for the reasons which follow.
In AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106, Gibbs CJ, Mason, Wilson and Deane JJ, when discussing civil and criminal contempt, said:
"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."
At 108 their Honours said:
"A rather similar notion lies behind the cases in which disobedience to an order which is wilful or contumacious amounts to criminal contempt…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."
A little further on their Honours said:
"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. However, the distinction between casual, accidental and unintentional disobedience on the one hand and wilful disobedience on the other, offers the prospect of a more limited base for upholding the imposition of a fine by the Federal Court in the circumstances of this case."
At 112 their Honours said:
"To those reasons we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional."
It can be seen from the above comments, that the intention of a person who is said to be guilty of contempt is a relevant consideration, at least in the punishment of any contempt which is established. In this case Mr Lovell and the Union deny that there was any contempt and any intention to commit any contempt.
In an affidavit sworn 19 February 1998, AB 578, Mr Lovell said that prior to the giving of the relevant undertaking, he had approached Messrs Buss and Ellis at the Court. He said:
"10… I said to them that I could not agree to make an undertaking as to the entirety of the terms of the injunction application. I said to Mr Buss that I had deposed that I would continue to write material for the CEPU Hamersley Brief as that was the very essence of the constitutionally implied freedom to communicate on political matters and I would not give it up. I also said to them something to the effect that I would make an undertaking in respect of the matters contained in the application at paragraph 2(a) and (b) but no more. I said that I had no problem with those matters. However I most specifically did not undertake to remain silent on any matters pertaining to the litigation or to the matters contained in paragraphs 2(c) ‑ (e)."
Mr Lovell deposed:
"12.On 24 December 1997 Walsh J made orders upon the undertakings given attached hereto as exhibit 'B' and which clearly do not contain the matters about which I refused to agree to make any undertakings.
13.During the hearing of the matter I raised the issue of the provisional nature of the undertaking but was interceded upon by his Honour. Attached hereto as exhibit 'C' is a transcript of that hearing and I refer to page 4 of the transcript at the penultimate paragraph where I sought to place those matters on record. I say that the matters I was referring to in the 'proviso' were the matters raised above as to further issues of the CEPU Hamersley Brief and to reports of proceedings and the progress of the litigation."
It can be seen from the relevant order made by Justice Walsh on 24 December 1997 (AB 586), that the undertakings which had originally been proposed in subpars 2(a) and 2(b) of the summons for the interim injunction (AB 583) form part of the order, whereas those which had been proposed in subpars 2(c) ‑ (e) have been omitted from his Honour's order.
In an affidavit sworn 20 May 1999, Mr Lovell deposed:
"6.I refer to exhibit '1' and in particular paragraphs 5 to 10 and say that Mr Willox was present at the meeting which took place in the corridor deposed to at paragraph 10. He was present when I said that I could not agree to any undertaking in the terms proposed and the draft orders were then altered to specifically delete the matters on which I said I would not give any undertakings. Further to what is deposed to in paragraph 10, I also said at that time, that I intended to write a fair report of that day's proceedings in court.
…
8.During the court proceedings before Justice Walsh at page 4 of the transcript I referred his Honour to my affidavit sworn 24 December 1997 and his Honour replied, 'Yes, I have read it all.' There were no objections raised to the contents of the affidavit and no order sought as to the suppression of publication of its contents or of any matter before the court in open session.
9.Mr Willox has not deposed to contradict the above conversation nor to inform this Court of the fact that he was aware that I had refused to give an undertaking in the terms originally sought by the applicant and that such undertaking was limited to the matters that I had agreed to and no more. Neither Mr Ellis nor Mr Buss who were also present has contradicted the facts deposed to by me in my affidavit sworn 19 February 1998 as to the meeting and the conversation which I say took place."

It appears from the transcript which is reproduced at AB 592, that before Walsh J made the relevant order on 24 December 1997, there was some interchange between his Honour and Mr Lovell. His Honour asked:
"You do give the further undertaking until judgment of the Full Court or further order to be bound by paragraphs 2(a) and (b)?"
Mr Lovell replied: "There was one proviso that I did make in the discussion …."
Walsh J at that stage said: "But you give that undertaking?"
Mr Lovell then said:
"The undertaking was that - already there are a number of documents out there which I have no control over, but I myself make an undertaking that I will not further distribute that material until …."
His Honour then said: "Look Mr Lovell, can we just slow down a bit."
On 4 March 1998 the matter was raised before Anderson J. Mr Lee said:
"In those circumstances we say that there is no reason why the undertaking, or why leave should be granted to withdraw the undertaking. We say that it would be inappropriate with respect, given what transpired on that day; that is, agreement was reached between the parties on certain terms. That was communicated to the Judge in very clear terms and he went to some pains to make sure that everybody understood what was meant." (My emphasis) (AB 661).
The above submission from Mr Lee confirms that there was some kind of agreement reached between the parties before Justice Walsh made the relevant order. Subparagraphs 2(c), 2(d), 2(e) of the proposed order were omitted from the order which was made. That was apparently done after negotiations had taken place. At the present time I do not know that any person who was present at the negotiations has deposed that Mr Lovell is incorrect in what he says about the alleged agreement.
When considering whether Mr Lovell's affidavit should be excluded from evidence, in my view, it is also a significant consideration that this Court has not heard the complete argument on all the issues involved.
In my view the affidavits deposing to Mr Lovell's belief and the circumstances surrounding the giving of the undertakings in subpars 2(a) and (b) of the order, and the refusal to give those in sub‑pars 2(c), (d) and (e), may be significant to the eventual consideration of the matter generally.
For those reasons I would admit Mr Lovell's affidavits in their entirety.