Incitec Ltd v Quinphos Fertilizers (Aust) Pty Ltd

[1992] FCA 522

Re: INCITEC LIMITED
And: QUINPHOS FERTILIZERS (AUST) PTY LIMITED
No. N G158 of 1992
FED No. 522
Contempt, Attachment and Sequestration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Contempt, Attachment and Sequestration - Contempt of Court - Rules of the Federal Court of Australia - Procedure to be followed - Requirement of specificity in statement of charge - Degree of specificity required - Failure of statement of charge to meet standard - what orders will be made.

Doyle v The Commonwealth (1985) 156 CLR 510

Coward v Stapleton (1953) 90 CLR 573

MacGroaty v Clauson (1989) 167 CLR 251

Chiltern District Council v Keane (1985) 1 WLR 619

HEARING

SYDNEY

#DATE 8:5:1992

Counsel for the Applicant: Mr P.W. Gray

Instructed by: Morris, Fletcher and Cross

Counsel for the Respondent: Mr N. Hutley

Instructed by: Corrs Chambers Westgarth

ORDER

THE COURT ORDERS THAT:

1. the notice of motion be dismissed;

2. the applicant pay the costs of the respondent on the notice of motion.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

The application in this matter first came before the Court on 1 May, 1992. The application is by way of notice of motion under O 19 r 2 of the Federal Court Rules. As formulated, the notice of motion sought in its first paragraph that the respondent be punished for contempt of court specified in the statement of charge annexed to the notice of motion and marked A. Subsequent paragraphs of the notice of motion sought injunctive relief in the terms set out.

1. When the matter came before the Court on 1 May, counsel appearing for the respondent, on instructions from the respondent, gave undertakings in the terms of the paragraphs seeking injunctive relief. Those undertakings were received by the Court. No application is made in respect of those undertakings and they remain binding, according to their terms. They had the effect, however, of discharging paragraphs 2 and 3 of the notice of motion.

2. It is convenient, in light of that fact, to dispose of one matter of challenge that has been brought to the notice of motion today, namely, that it has joined in it an application for punishment in respect of an alleged contempt of court with other matters relating to purely civil relief in the proceedings. Whatever significance that particular claim would have had in relation to the matters that I must decide today, that significance, in my view, has vanished, having regard to what occurred in respect of those paragraphs on 1 May. In any event, the nature of the attack on the notice of motion, had it been successful in that respect, would, in my view, have been sufficiently answered by severing those particular portions of the notice of motion to be heard separately from the application for punishment for contempt.

3. The question before me today relates simply to that aspect of the notice of motion which seeks punishment for contempt of court, the details of which I have already referred to. The notice of motion has been taken out, pursuant to the provisions of O 40 r 5(1) of the Federal Court Rules. The rule provides relevantly as follows:
   

"Where it is alleged that a contempt has been committed in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by motion on notice in the proceeding..."

The balance of the rule has no application.

1. To be read with r 5, is r 6, which provides:
   

"a statement of charge, that is, a statement specifying the contempt of which the accused is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application."

1. It is to be observed that the rule requires that the statement be one specifying the contempt of which the accused person is alleged to be guilty. The requirement for specification of the precise contempt alleged has been the subject of consideration in cases of high authority, which have been referred to in the hearing before me today.

2. In Doyle v The Commonwealth (1985) 156 CLR 510 the following passage appears in the judgment of the Court at 516:
   

"Although disobedience of an injunction is not a criminal offence ... and a proceeding for the committal of a person who has wilfully disobeyed an order of the court is not a criminal proceeding ... except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the court ... a proceedings for committal may result in a very serious interference with the liberty of the subject - indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply."

The passage then goes on to say:

"...the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge."

1. Some aspects of the general principle are mentioned in the judgment of Williams ACJ, Kitto and Taylor JJ. in Coward v Stapleton (1953) 90 CLR 573 in the following passage (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, though it is not always necessary to formulate the charge in a series of specific allegations..."

1. It is noted that the person charged must be allowed a reasonable opportunity of being heard in his own defence. I do not need to set out in detail that portion of the passage, as it has no application here. The passage, however, terminates by stating that:
   

"Resting as it does upon accepted notions of elementary justice, this principal must be rigorously insisted upon."

1. To like effect is a passage appearing in the judgment of the High Court of Australia in MacGroaty v Clauson (1989) 167 CLR 251 at 255, which I shall not set out in these reasons. Reference may also be made of the Court of Appeal in Chiltern District Council v Keane (1985) 1 WLR 619. This was an appeal in respect of an order committing the appellant to jail for contempt, in circumstances where it is made clear by the learned Master of the Rolls, Sir John Donaldson (at 621), that the appeal "totally lacked the ingredient of merit".

2. The learned Master of the Rolls, however, went on to say (at 621) that :
   

"Where the liberty of the subject is involved, this Court has time and again asserted that the procedural rules applicable must be strictly complied with."

1. Dealing with the notice of motion for committal for contempt that had been before the trial judge, Donaldson M.R., said (at 622):
   

"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."

His Lordship went on to say:

"Every notice of application to commit must be looked at against its own background. The test, as I have said, is: does it give the person alleged to be in contempt enough information to enable him to meet the charge?"

1. The respondent in the proceedings before me relies upon these authorities and upon the wording of O 40 r 6 to found a submission that the statement of charge annexed to the present notice of motion does not comply with the requirements of that rule as it fails to specify to any sufficient extent the nature of the claim made against the respondent for contempt of undertakings given to this Court.

2. The statement of charge refers to undertakings given to the Court on 3 April that the respondent would not, for a period of three months from 31 March 1992, by itself, its servants or agents, publish or cause to be published, distribute, circulate or otherwise make any of the representations set out in the first paragraph of the application of 25 March 1992 in the substantive proceedings before the Court.

3. Those representations are then set out seriatim ranging from (A) to (P). The breach assigned in the charge reads as follows:
   

"... Since 3 April 1992, the respondent has breached its undertaking to the Court on at least one occasion by publishing or causing to be published, distributing, circulating or making one or more of the representations which it had undertaken to the Court not to publish or cause to be published, distribute, circulate or make."

1. I am quite satisfied that the assignment of breach in this form completely fails to answer the requirements of specificity enjoined by r 6 as explained in the authorities to which I have made reference. The statement of charge is thereby defective and the notice of motion as presently framed is inadequate to call upon the respondent to make answer. In these circumstances it has been submitted that I should simply dismiss the notice of motion with costs so far as it relates to the application for punishment of contempt.

2. I should perhaps indicate that in support of the notice of motion as framed, it was argued very lucidly by counsel for the applicant that I am not dealing with a notice of motion seeking committal to gaol for contempt. The applicant is a company and the type of punishment that might be inflicted could well be in the nature of a fine. It was also put to me that I should have regard to those parts of the statements of authority to which I have made reference which indicate that a court should have regard to the gist of the statement of charge in determining whether it sufficiently brings to the notice of the person charged, the matters asserted against him. I have had regard to those matters and I mention that fact only so that it be made abundantly clear.

3. The statement of charge in my view falls very far short of indicating to the respondent the gist of the complaint made. I should also note that, this being a preliminary objection, I have had no regard to affidavit material which has been filed. It was frankly and properly conceded that the affidavit filed in support of the notice of motion did not itself enlarge in any significant degree upon the matters alleged against the applicant.

4. The applicant has submitted to me that in the event that I hold the notice of motion to be defective in the manner that I have, I should not take the step of dismissing it but instead I should accede to an application which has been made, namely that it be adjourned with leave given to the applicant to reformulate the statement of charge so that the matter can be heard on an adjourned date on a new basis. I have been advised that the respondent, in answer to the notice of motion, has filed evidence on the basis that if the preliminary point were unsuccessful, then the matter would be heard on the merits.

5. I have been told by Mr Hutley for the respondent that the relevant material has been prepared as far as possible on the basis of the statement of charge as presently formulated, and that it would not by any means necessarily be appropriate to a reframed statement of charge. It was put to me that the material in itself could be prejudicial, and that the respondent should not be put in a prejudicial position as a result of an order for adjournment being made. I take that matter into account though it is not, to my mind, a decisive consideration.

6. When I consider the principle to which I have made reference I can only approach the question on the basis, in my view, that the statement of charge is in a very significant respect fundamental to a notice of motion brought under O 45 r 1. If a statement of charge is substantially defective then, in my view, the only proper approach for the Court to take is to treat the whole of the proceedings as being so defective as to warrant their dismissal. It is always open to the applicant to bring fresh proceedings upon a statement of charge formulated in accordance with the rule. The dismissal of these proceedings will have no effect upon the validity of any proceedings subsequently brought. In the circumstances I think that I should accede to the submission made on behalf of the respondent that the only appropriate course is simply to dismiss these present proceedings.

7. I think in all the circumstances there is only one cost order that can be made, namely that costs follow the event. Accordingly, I order the applicant to pay the respondent's costs of the motion.