Judgment delivered by Mowbray FM on 19 April 2006 as
[2006] FMCA 530
•19 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHOUNDARY v CAPITAL AIRPORT GROUP (CORRIGENDUM) | [2006] FMCA 530 |
| PRACTICE AND PROCEDURE – HUMAN RIGHTS – Contempt – intention – destruction of e-mail mailbox – compliance with subpoena – compliance with discovery orders – no prima facie case – application dismissed. |
| Sex Discrimination Act 1984 (Cth) Federal Magistrate Court Rules 2001 (Cth) |
| May v O’Sullivan (1955) 92 CLR 654 R v Cook; ex parte Twigg (1980) 147 CLR 15 Witham v Holloway (1995) 183 CLR 525 Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 R v Rogerson (1992) 174 CLR 268 Meissner v R (1995) 184 CLR 132 |
| Applicant: | KORINA CHOUNDARY |
| Respondent: | CAPITAL AIRPORT GROUP |
| File Number: | CZ 24 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 21, 22 and 23 November 2005 |
| Delivered at: | Canberra |
| Delivered on: | 19 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Francois |
| Solicitors for the Applicant: | Nicholas Dibbs Solicitors |
| Counsel for the Respondent: | Mr A Robertson SC |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
ORDERS
The application of 22 March 2005 be dismissed.
CORRIGENDUM
Judgment delivered by Mowbray FM on 19 April 2006 as [2006] FMCA 530
Amend paragraph 39 to read:
The charge is that in disobedience to the orders the full e-mail chain of 4 December 2001 referred to above was not included in the affidavit of discovery filed on 15 July 2004. However the two discrete e-mails from the chain were listed (Schedule 1 Part 1 items 146 and 147).
Amend paragraph 42 to read:
In compliance with Rule 14.03 Mr Byron swore an affidavit of documents on 14 July 2004 which was filed on 15 July 2004. The affidavit listed in Schedule 2 documents which had been in the respondent’s possession but which could not “be located and have either been lost, misplaced or destroyed in the ordinary course of business”.
_____________________________________________________________________I certify that the preceding two paragraphs are a true copy of the Corrigendum to the Judgment [2006] FMCA 530 of Mowbray FM.
Associate: Natasha Werner
Date: 19 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHOUNDARY v CAPITAL AIRPORT GROUP | [2006] FMCA 530 |
| PRACTICE & PROCEDURE – HUMAN RIGHTS – Contempt – intention – destruction of e-mail mailbox – compliance with subpoena – compliance with discovery orders – no prima facie case – application dismissed. |
| Sex Discrimination Act 1984 (Cth) Federal Magistrate Court Rules 2001 (Cth) |
| May v O’Sullivan (1955) 92 CLR 654 R v Cook; ex parte Twigg (1980) 147 CLR 15 Witham v Holloway (1995) 183 CLR 525 Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 R v Rogerson (1992) 174 CLR 268 Meissner v R (1995) 184 CLR 132 |
| Applicant: | KORINA CHOUNDARY |
| Respondent: | CAPITAL AIRPORT GROUP |
| File Number: | CZ 24 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 21, 22 and 23 November 2005 |
| Delivered at: | Canberra |
| Delivered on: | 19 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Francois |
| Solicitors for the Applicant: | Nicholas Dibbs Solicitors |
| Counsel for the Respondent: | Mr A Robertson SC |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
ORDERS
The application of 22 March 2005 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CZ 24 of 2003
| KORINA CHOUNDARY |
Applicant
And
| CAPITAL AIRPORT GROUP |
Respondent
REASONS FOR JUDGMENT
Ms Korina Choundary was employed from December 1997 initially by Capital Property Finance Pty Ltd and then the Capital Airport Group Pty Ltd. She took maternity leave in 2001.
In December 2002 she lodged a complaint against the respondent with the Human Rights and Equal Opportunity Commission alleging unlawful discrimination under the Sex Discrimination Act 1984 in relation to her employment. She commenced proceedings in this Court in September 2003.
On 15 February 2005 following a series of interlocutory steps the applicant intimated that she proposed to bring contempt proceedings against the respondent. On 22 March 2005 she filed an application that the respondent be punished for contempt. I decided that that matter should be dealt with separately from the discrimination claim and finalised before hearing that claim. This judgment is on the contempt matter.
Orders sought by the applicant
The final orders sought by the applicant are:
1. That Pursuant to Federal Magistrates Court Rule 19.02(1) the Respondent be found guilty of contempt of this Court for interfering in the due administration of justice in that it intentionally destroyed the Applicant’s e-mail mailbox after it had been notified of the proposed proceedings and after it had accessed that e-mail account on or about 3 October 2002 for the purpose of its proposed defence.
2. In the alternative to 2[sic], that the Respondent be found guilty of attempting to pervert the course of justice in that it destroyed the Applicant’s e-mail mailbox after it had been notified of the proposed proceedings and after it had accessed that e-mail mailbox on or about 3 October 2002 for the purpose of its proposed defence.
3. That pursuant to the Federal Magistrates Court Rule 19.02(1) the Respondent be found guilty of contempt of this Court for failing to comply with the subpoena issued by this Court on 12 February 2004 in that it did not produce the full chain of email correspondence dated 4 December 2001 between the Applicant and Ms Leesa Baker and then Ms Baker and Ms Hall and Ms Lindsay.
4. That pursuant to Federal Magistrates Court Rule 19.02(1) the Respondent be found guilty of contempt of this Court for failing to comply with the order for discovery made by this Court on 1 July 2004 in that it did not discover the full chain of email correspondence dated 4 December 2001 variously between the Applicant and Ms Leesa Baker and then Ms Baker and Ms Hall and Ms Lindsay.
5. That the Respondent be fined and such further punishment as the Court deems appropriate.
6. That the Respondent pay the Applicant punitive damages.
7. That the Respondent pay the costs of these proceedings on an indemnity basis.
8. Such further and other order as the Court deems fit.
I shall refer to the final orders 1 to 4 as charges 1 to 4.
Charge 2 amounts to an indictable offence for which this Court has no jurisdiction. The applicant does not press it.
Procedure and general principles
The procedure for contempt other than in the face of the Court is in Rule 19.02 of the Federal Magistrates Court Rules. Rule 19.02(6) requires the Court to:
·tell the person of the allegation
·ask the person to state whether he or she admits or denies the allegation
·hear any evidence in support of the allegation.
By Rule 19.02(7), after hearing evidence in support of the allegation, the Court may:
·if the Court decides there is no prima facie case, dismiss the application
·if the Court decides there is a prima facie case, invite the person to state his or her defence to the allegation, and after hearing any defence determine the charge.
In this matter the respondent has denied all three remaining charges.
Both parties accept that the test for a prima facie case is that enunciated in May v O’Sullivan (1955) 92 CLR 654 at 658:
[T]he question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted.
The applicant must establish her case of contempt by admissible evidence: R v Cook; ex parte Twigg (1980) 147 CLR 15 at 25.
The onus rests upon the applicant to make out the charges. The standard of proof is beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525.
The respondent is of course liable for the actions of its officers when they are acting within the course of their employment.
Charge 1: destruction of applicant’s e-mail mailbox
The applicant alleges that the respondent intentionally destroyed the applicant’s e-mail mailbox after it had been notified of the proposed proceedings and after it had accessed that e-mail account on or about
3 October 2002 for the purposes of its proposed defence. This the applicant asserts constitutes contempt for interfering in the due administration of justice.
As well as various factual disputes on this matter, there are at least two legal issues which are contested by the parties:
·what intention, motive or purpose is required
·at what stage prior to proceedings could an act constitute contempt.
Intention
Ms Francois for the applicant submitted that she does not have to prove that the respondent intended to interfere with the administration of justice. Rather the applicant must prove that the respondent intended to do the acts which were likely to interfere with the administration of justice. Ms Francois said this was the effect of the following passage from Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 at 258:
It was submitted on behalf of the respondent that conduct otherwise lawful can amount to a contempt of court if done with a particular intention. That is correct, but the intention must be to do something likely to interfere with the course of justice. Thus it may be lawful for one man to advise another to take a holiday in Brazil, but the giving of the advice may constitute a contempt of court if the advice is given for the purpose of keeping the witness out of the way to avoid service of a subpoena. It may be lawful to dismiss a servant or to deprive a man of his office in a trade union, but if this is done for the purpose of punishing him for having given evidence it is a contempt of court: Rowden v. Universities Co-operative Association Ltd. (14); Attorney-General v. Butterworth (15). In those cases, the purpose, intention or motive of the act was to do the very thing that would interfere with the course of justice – to keep the witness out of the way or to victimize the witness. The words “purpose”, “motive”, “object” and “intention” are used interchangeably in the judgments in Attorney-General v. Butterworth and it is quite unnecessary for present purposes to distinguish between them; we shall use the word “intention” to cover motive as well. An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important (Attorney-General v. Butterworth (16); John Fairfax & Sons Pty. Ltd. v. McRae (17)).
However, their Honours went on to say:
A lawful act may constitute a contempt if done with the intention of interfering with the course of justice, but will not become a contempt simply because it was done to achieve some purpose or further some interest of the person doing it.
Mr Robertson for the respondent insisted that an intention to interfere with the administration of justice was an essential element. As he pointed out McHugh J noted Archbold’s view that “the offence of perverting the course of justice is merely contempt under another name”: R v Rogerson (1992) 174 CLR 268 at 303; see also Dawson J in Meissner v R (1995) 184 CLR 132 at 156.
The offence of attempting to pervert the course of justice consists of two essential elements: the doing of an act having the tendency to pervert the course of justice and an intent to pervert the course of justice: Rogerson at 275-276.
I accept Mr Robertson’s proposition for the reasons he submitted:
Where conduct is of the kind here alleged, destruction of relevant material, where the offence of attempting to pervert the course of justice would require an intent to interfere with the administration of justice, such an intention is also required for contempt of court.
In my view it is necessary for the applicant to prove that the respondent intended to interfere with the administration of justice in any deletion or destruction of the e-mail mailbox. I do not agree that this is inconsistent with the High Court in Lane.
There is no direct evidence of the respondent’s intention.
Indeed there is no direct evidence that the e-mail mailbox has been destroyed or deleted. Ms Francois says this can be inferred from two pieces of evidence. The e-mail mailbox existed on 3 October 2002 because e-mails were sent from it to the respondent’s solicitors. Secondly Mr Ferraro, an information technology expert, testified that on a back up tape for 9 January 2003 he found an e-mail chain (annexure A to his affidavit of 23 March 2005) and two unsuccessful mail mergers. Ms Francois submits that it can be inferred that there was nothing more on the tape and therefore the e-mail mailbox had been destroyed.
Ms Francois argued that the intention to interfere with the administration of justice can be inferred from a number of matters, including:
·the inference that the e-mail mailbox had been destroyed
·the inference that this had occurred between 3 October 2002 and 9 January 2003
·this was after the applicant sent a letter of demand to the respondent
·during this period an application was lodged with the Human Rights and Equal Opportunity Commission
·Mr Ferraro’s evidence that deletion would require particular expertise
·Mr Ferraro’s evidence that it was not usual commercial practice to delete a former employee’s e-mail mailbox if that employee had played an important role in the organisation.
It is not clear from Ms Francois’ submissions whether she also sought to rely for intention on any other evidence or inferences.
On this evidence I could not be satisfied beyond reasonable doubt that the respondent intended to interfere with the administration of justice. As noted there is no direct evidence of intention. Some of the indirect evidence would require inferences to be drawn from other inferences, rather than being based on facts proved by evidence.
In the end any finding on intention would be so speculative that it could not be beyond reasonable doubt. It is therefore unnecessary to consider the other issues arising under charge 1.
I find that there is no prima facie case on the first charge.
Charge 3: compliance with subpoena
The subpoena in question was issued on 12 February 2004 directing the respondent to produce the following documents on 26 February 2004:
1. All Email communication to and from Korin Norden/Korina Choundary maintained by the Respondent’s server for the period of 1 November 2000 to 29 February 2002 [sic].
2. All email communications to and from Stephen Byron concerning Korina Norden/Korina Choundary maintained by the Respondent’s server for the period of 1 November 2000 to 29 February 2002 [sic].
3. All email communications to and from Leesa Baker concerning Korina Norden/Korina Choundary maintained by the Respondent’s server for the period of 1 November 2000 to 29 February 2002 [sic].
The charge is that the respondent failed to comply with the subpoena. A full e-mail chain containing six discrete or separate e-mails discovered by Mr Ferraro and annexed at A to his 23 March 2005 affidavit was not produced. That e-mail chain was dated 4 December 2001.
It is common ground that the e-mail chain was not produced. However two discrete e-mails from the chain were produced.
Nevertheless the charge is misconceived.
The subpoena was directed to e-mails for the period in question “maintained by the Respondent’s server”. There is no evidence that the e-mail chain in question was on the respondent’s server at the relevant time.
Mr Ferraro gave evidence that he located the chain of e-mails on the back up tape of 9 January 2003. He also made it clear that back up tapes are separate from the server. He gave no evidence that the e-mails in question were on the server at the time the subpoena was issued or the date of its return. There is no such evidence.
Mr Ferraro gave evidence that the two discrete e-mails in the
4 December 2001 e-mail chain which were produced in response to the subpoena did not exist, at least originally, in isolation. They could only have been produced by modification of the chain. But this is not sufficient for me to draw an inference that the full chain was still on the server in February 2004.
The subpoena was not ambiguous. It sought material from the server, not back up tapes.
There is no prima facie case on the third charge.
Charge 4: compliance with discovery orders
On 1 July 2004 Driver FM made the following orders for discovery:
2. On or before 15 July 2004 the respondent shall discover:
(a) all e-mails to and from the applicant for the period 1 November 2000 to 28 February 2002;
(b) all e-mails to and from Mr Stephen Byron concerning the applicants [sic] for the period 1 November 2000 to 28 February 2002;
(c) all e-mails to and from Ms Leesa Baker concerning the applicant for the period 1 November 2000 to 28 February 2002.
3. For the purposes of rule 14.03 of the Federal Magistrates Court Rules 2001 (Cth) the respondent’s affidavit of discovery shall distinguish between documents previously produced on subpoena and documents not previously produced.
The charge is that in disobedience to the orders the full e-mail chain of 4 December 2001 referred to above was not included in the affidavit of discovery filed on 15 July 2005. However the two discrete e-mails from the chain were listed (Schedule 1 Part 1 items 146 and 147).
Again there is no dispute about these facts.
Discovery concerns documents “in the possession, custody or control” of a party: Division 14.2 Federal Magistrates Court Rules.
In compliance with Rule 14.03 Mr Byron swore an affidavit of documents on 14 July 2005 which was filed on 15 July 2005. The affidavit listed in Schedule 2 documents which had been in the respondent’s possession but which could not “be located and have either been lost, misplaced or destroyed in the ordinary course of business”.
Mr Ferraro gave evidence that he located the chain of e-mails on the back up tape of 9 January 2003. For similar reasons to those given in relation to charge 3 I could not be satisfied beyond reasonable doubt that the respondent held the chain of e-mails elsewhere in its possession. There is no direct evidence and I am not prepared to draw the necessary inferences from the evidence.
However the 9 January 2003 back up tape was not listed in the affidavit of documents.
The applicant’s solicitor, Ms Nicholas, testified that she had received a phone call from the respondent’s solicitor, Mr Kynaston, on
20 September 2004 saying that his client had found the 9 January 2003 back up tape. Ms Nicholas said she had no reason to disbelieve
Mr Kynaston. The clear implication is that the tape was only recently found.
The tape was handed over to the applicant’s solicitors on 30 September 2004. Ms Nicholas said that it was unreadable. It only became intelligible after Mr Ferraro’s analytical work on it in the United States in November 2004. The e-mail chain was then revealed.
The question is could I be satisfied beyond reasonable doubt on the evidence that the back up tape was in the possession, custody and control of the respondent in July 2004 and had not been lost or misplaced. I am clearly of the view that I could not.
There is no prima facie case on the fourth charge.
Conclusions
The applicant has failed to make out a prima facie case on each of the three charges pressed and did not pursue the fourth charge.
I agree with Mr Robertson that in proceedings as serious as those for contempt the specific charges must be distinctly and clearly stated. The elements of the offences should be articulated and the alleged facts set out in some detail. There were significant failings on this score and in the general handling of this matter.
The application of 22 March 2005 must be dismissed. I will hear the parties on costs.
I certify that the preceding fifty-one paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 19 April 2006
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