Ryan v Novartis Animal Health Australasia Pty Ltd
[2013] FCCA 1487
•3 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RYAN v NOVARTIS ANIMAL HEALTH AUSTRALASIA PTY LTD | [2013] FCCA 1487 |
| Catchwords: PRACTICE & PROCEDURE – Contempt – orders not endorsed with prescribed warning – considerations relevant to dispensing with that requirement – prima facie case of contempt. |
| Legislation: Federal Circuit Court Rules 2001, rr.1.06, 19.02, 29.07 |
| Cases Cited: Abigroup Contractors Pty Ltd v Carnegie [2013] FCCA 1099 |
| Applicant: | MEAGHAN RYAN |
| Respondent: | NOVARTIS ANIMAL HEALTH AUSTRALASIA PTY LTD ACN 076 754 198 |
| File Number: | SYG 498 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 13 September 2013 |
| Date of Last Submission: | 13 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2013 |
REPRESENTATION
| The applicant did not appear. |
| Counsel for the Respondent: | Ms M Painter |
| Solicitors for the Respondent: | FCB Workplace Law |
ORDERS
The matter stand over to 25 October 2013 at 9:30am for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 498 of 2013
| MEAGHAN RYAN |
Applicant
And
| NOVARTIS ANIMAL HEALTH AUSTRALASIA PTY LTD ACN 076 754 198 |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 March 2013 the applicant, Ms Ryan, commenced proceedings in this Court alleging that the respondent had contravened the Fair Work Act 2009 by terminating her employment because she had exercised her workplace rights.
On 25 June 2013 Judge Lloyd-Jones ordered that a litigation guardian be appointed to manage Ms Ryan’s case, that no further steps be taken in the proceedings until a guardian was appointed and that the registrar of the Court make enquiries of the NSW Bar Association and the NSW Law Society to identify a person who would be willing to be Ms Ryan’s litigation guardian. Those enquiries were unsuccessful and, to date, a litigation guardian has not been appointed.
On 25 July 2013 the respondent filed an application in a case seeking, amongst other orders, orders restraining Ms Ryan from communicating with any of its employees, officers or contractors. That day Judge Lloyd-Jones made orders restraining Ms Ryan from directly or indirectly contacting the seventy-two people listed in sch.1 to those orders until a litigation guardian was appointed to conduct the proceedings on her behalf. On 31 July 2013 his Honour made further orders continuing to restrain Ms Ryan from directly or indirectly contacting those seventy-two people.
Ms Ryan did not appear in Court on 25 or 31 July 2013.
The affidavit of service of Vivienne Hiscox sworn 4 September 2013 satisfies me that the Orders of 25 July 2013 were served personally on Ms Ryan on the day they were made. No similar affidavit was filed in relation to the Orders of 31 July 2013. It appears from the 5 September 2013 affidavit of the respondent’s solicitor, Ms Eather, that Ms Eather received a sealed copy of those orders from the Court by post. The Court’s file has not recorded that posting nor any equivalent despatch to Ms Ryan. Nevertheless, annexures to the 4 September 2013 affidavit of the respondent’s head of human resources in Australia and New Zealand, Ms Marran, demonstrate through pictures attached to emails sent by Ms Ryan that the latter was in possession of a copy of the Orders of 31 July 2013 by at least 6 August 2013, albeit that para.11(b) of the affidavit of Ms Marran referred to the 21 July 2013 orders. Indeed the contents of the letter Ms Ryan sent to Brian Cassar, one of the respondent’s employees, on 1 August 2013 indicates that she was aware of the orders’ terms then.
However, when taken out, neither of the Orders was endorsed with a warning that Ms Ryan would be liable to be punished for contempt if she disobeyed them. Rule 29.07 of the Federal Circuit Court Rules 2001 relevantly provides in this regard:
29.07 Endorsement on order
If an order requires a person to do, or not to do, an act or thing, whether within a certain time or not, and the consequences of failing to comply with the order may be committal, sequestration or punishment for contempt, the order must carry an endorsement that the person to be served with the order will be liable to imprisonment, sequestration of property or punishment for contempt if:
(a)for an order that requires the person to do an act or thing - the person neglects or refuses to do the act or thing within the time specified in the order; or
(b)for an order that requires the person not to do an act or thing - the person disobeys the order.
Respondent’s application in a case
On 3 September 2013 the respondent contacted the Court seeking urgent listing of the matter to deal with Ms Ryan’s alleged breach of the Orders made on 25 and 31 July 2013. The matter was then listed on 5 September 2013 before me as duty judge. On 5 September 2013 the respondent filed in court an application in a case asking that Ms Ryan be dealt with for contempt on the basis that, by contacting seven people mentioned in the schedules to the Orders made on 25 and 31 July 2013, she had breached those orders.
Rule 19.02 of the Court’s rules relevantly provides:
19.02 Contempt other than in the face or hearing of Court
(1)If it is alleged that a person has committed a contempt of the Court (other than contempt in the face or hearing of the Court), an application may be made to the Court for the person to be dealt with for the contempt.
…
(3) An application may be made:
(a)if the contempt is in connection with a proceeding, by a party in the proceeding; …
…
(6) When the person attends before the Court, the Court must:
(a) tell the person of the allegation; and
(b)ask the person to state whether he or she admits or denies the allegation; and
(c) hear any evidence in support of the allegation.
(7)After hearing evidence in support of the allegation, the Court may:
(a)if the Court decides there is no prima facie case, dismiss the application; or
(b) if the Court decides there is a prima facie case:
(i) invite the person to state his or her defence to the allegation; and
(ii) after hearing any defence, determine the charge.
(8)If the Court finds the charge proved, the Court may make an order for the punishment of the person.
The applicant was aware of the listing of the respondent’s application for hearing but did not appear. She filed an application in a case seeking its adjournment, which was dismissed. For the reasons which follow I find that the respondent has made out a prima facie case of contempt on the part of Ms Ryan. The matter will be relisted on a date to be fixed for the applicant to advance her defence.
Evidence
Leanne Marran
Ms Marran deposed in affidavits affirmed on 4 September 2013 and 12 September 2013 that:
a)on 6 August 2013:
i)she had a discussion with Brian Cassar, one of the respondent’s employees named in sch.1 to the 25 and 31 July 2013 Orders, during which Mr Cassar told her that he had received a letter from Ms Ryan at his home address;
ii)Ms Ryan sent an email to Mr Cassar attaching a medical certificate as well as number of photos of her face and what appeared to be sealed copies of the 25 [sic] July 2013 orders. Ms Ryan also forwarded the email and the documents attached to it to Anja Browning, another of the respondent’s employees named in sch.1 to the orders;
b)on 7 August 2013 Ms Ryan sent Mr Cassar another email attaching further photos of her face and a medical certificate;
c)on 16 August she received an email from Mr Cassar saying that he had received another email from Ms Ryan;
d)on 19 August 2013 she had a telephone conversation with Mr Cassar during which he said that Ms Ryan had sent another letter to his home and that the return address on the envelope was a local school near his home;
e)on 29 August 2013:
i)Ms Ryan sent an email to, among others, Mr Cassar, Ms Browning, Les Gabor and Renee Debenedetti, the latter two also being named in sch.1 to the Orders;
ii)Ms Ryan forwarded Mr Cassar an email chain which included a Centrelink medical certificate from a Dr Verity Griffiths;
iii)Ms Ryan sent a further email to Mr Cassar forwarding that email chain;
f)on 30 August 2013 Mr Cassar told her that he had received two further letters from Ms Ryan at his home address and gave her copies of the letters;
g)on 31 August 2013:
i)Ms Ryan sent Mr Gabor an email which was also sent to the respondent’s solicitors and to staff of the Court;
ii)Ms Ryan forwarded that email to Mr Cassar and Joe Jimenez [sic], who is also ostensibly named in sch.1;
iii)Ms Ryan sent another email to Mr Cassar asking him to not tell anyone about her communications with him;
iv)Ms Ryan also sent an email to the private email address of Leah Simmons, who is listed in sch.1;
h)on 1 September 2013:
i)Ms Ryan sent an email to, among others, Mr Cassar, Ms Debenedetti, Ms Browning, Mr Gabor, Ms Simmons and Jerome Giraudel [sic], the latter also being named in sch.1;
ii)Ms Ryan sent Mr Cassar an email message through the website “Domain.com.au” (“Domain”) which had an advertisement for an apartment for sale in Artarmon;
i)on 2 September 2013, Ms Ryan sent the following:
i)an email to Mr Cassar, Ms Debenedetti, Ms Browning, Mr Giraudel [sic], Mr Gabor and Ms Simmons with a link to a car for sale;
ii)a further email to Mr Cassar, Ms Debenedetti, Ms Browning, Mr Giraudel [sic], Mr Gabor and Ms Simmons later that day;
iii)an email to Mr Gabor (along with the respondent’s solicitors); and
iv)an email to Mr Cassar.
j)on 3 September 2013:
i)she received an email from Mr Gabor which forwarded an email message using Domain together with an advertisement for an apartment for sale in Artarmon. The email purported to be sent from Mr Gabor’s email address but had a message signed “Meaghan”;
ii)she received an email from Mr Gabor stating that Ms Ryan had telephoned him. Mr Gabor telephoned Ms Marran and told her that Ms Ryan had also left a telephone message the day before. Ms Marran deposed that she had listened to the telephone message and that Ms Ryan had threatened to “go to the media” if her claim was not settled by 5pm that day;
k)on 4 September 2013:
i)she received an email from Ms Debenedetti which forwarded the same email and advertisement for an apartment for sale in Artarmon as had been sent to Mr Gabor only on this occasion the message purported to have been sent from Ms Debenedetti’s email address;
ii)she received from Ms Debenedetti seven emails relating to enquiries about a Subaru Liberty which Ms Debenedetti had received. Ms Marran deposed that Ms Debenedetti told her that she had not made such enquiries;
iii)she and Mr Gabor listened to two voicemail messages which had been left by Ms Ryan the previous night. She deposed that she later had a conversation with Mr Gabor during which he told her that he had received another voicemail message. Ms Marran deposed, in effect, that she had listened to the message;
iv)she received an email from Mr Cassar which forwarded an email from Mr Cassar’s wife in which Mrs Cassar referred to a telephone call she had received from Ms Ryan at home;
v)she was informed by Mr Gabor that Ms Ryan had left him another voicemail message. She deposed that Mr Gabor later forwarded her that voicemail message and that she had listened to it;
vi)Ms Ryan sent an email to Ms Debenedetti forwarding correspondence she had sent to the Court that afternoon;
vii)she received two emails from Mr Gabor in relation to contact he had received from Ms Ryan through Facebook;
viii)Mr Gabor sent an email to Ms Ryan asking her to stop contacting him. Ms Marran deposed that some of the respondent’s employees had told her that they were afraid of telling Ms Ryan to stop contacting them because they would end up on “the hate list”;
l)on 5 September 2013, Ms Ryan sent an email to Mr Giraudel and to Gunter Schuele, also a person named in sch.1 to Judge Lloyd-Jones’s orders;
m)on 9 September 2013:
i)Mr Ryan sent an email to Mr Cassar, Ms Debenedetti, Ms Browning and Michael Zoabi, another person named in sch.1 to Judge Lloyd-Jones’s orders. The email requested an out of court settlement and attached the following documents:
(A)an email from Ms Ryan to the respondent’s solicitors and Ms Ryan’s sister;
(B)a letter dated 5 September 2013 from the respondent’s solicitors to Ms Ryan serving the orders made in Court on 5 September 2013; and
(C)an email from Ms Ryan to the respondent’s solicitors and Ms Ryan’s sister dated 6 September 2013;
ii)Ms Ryan sent a further email to Mr Cassar, Mr Zoabi, Ms Debenedetti and Ms Browning which sought to add a further request to her earlier email; and
n)on 12 September 2013, Ms Marran received an email from Mr Zoabi forwarding an update email he had received from the social media website “LinkedIn” which featured a post from Ms Ryan concerning the respondent and these proceedings.
Annexed to Ms Marran’s affidavits were copies of the documents to which she had referred.
Consideration
Absence of penal endorsement
Although r.29.07 required that the orders made by Judge Lloyd-Jones bear the prescribed endorsement if they were to be relied on in an application such as the present, by virtue of r.1.06 the Court may dispense with compliance with the Rules should that be in the interests of justice.
Considerations relevant to the question whether to waive the requirement that an order be endorsed pursuant to r.29.07 were discussed recently by Judge Burnett in Abigroup Contractors Pty Ltd v Carnegie [2013] FCCA 1099. Relevantly, his Honour said:
In summary, I conclude that the authorities support the following principles:
(a)There is a requirement that, in circumstances where the respondent is not present in court, the order served upon the respondent must contain the penal endorsement; FCCR r.29.07.
(b)The requirement is not jurisdictional and the court may, in the exercise of its discretion, dispense with the compliance of its rules; FCCR r.1.06.
(c)The absence of evidence that the respondent was aware of the penal consequences of non-compliance will not deprive a court of jurisdiction; Australian Securities Commission v Macleod (No 1) … at [162].
(d)The discretion to dispense with FCCR r.29.07 is a general discretion to be exercised having regard to all of the circumstances of the case. Relevant matters include:
(i)Evidence of positive intention to ignore the order and defy the court such that the service of an order appropriately endorsed would constitute a useless formality is relevant: Deputy Commissioner Taxation v Hickey … at page 237; Deverall v Wannunup Development Nominees Pty Ltd … at 565; Morgan v State of Victoria … at [76].
(ii)Evidence of and the need to obey the order is relevant: Keith Harris & Co Ltd v Bryant … at 666.
(iii)The circumstances surrounding the granting of the relief suggesting the reason for the failure to incorporate the penal endorsement are relevant: Deverall … at 565.
(iv)Whether the conduct of the respondent was flagrant or contumelious: Deverall …at 565; Seaward v Paterson … at 556. (at [38])
Failure to include penal endorsement
During argument I was advised by counsel for the respondent that the respondent had requested endorsement of at least one of the sets of orders but when the sealed document was produced the endorsement had not been included. I do not doubt the accuracy of that advice.
Intention to defy orders and knowledge of penal consequence of non-compliance
As noted earlier, the Orders made on 25 July 2013 were served personally on Ms Ryan later that day. The letter from the respondent’s solicitors dated 25 July 2013, which I am satisfied was served at the same time, stated that if Ms Ryan were to breach those Orders she might be held to have acted in contempt of court. The letter went on to say:
We strongly suggest that you treat this matter very seriously.
It was signed by a Mr Robinson.
Ms Ryan did treat the matter seriously. When she wrote to Mr Cassar on 1 August 2013 she said:
Please please do not tell anyone about this that you don’t completely trust. There is a real chance I’ll be put in jail or an institution. I will be held in contempt of court. Don’t think Gunter would not do that. That’s what they have threatened me with to prevent me from talking to you.
…
You know the thing that would have helped the most would have been the ability to talk to some of you? They prevented that on day 1 & now threaten me with jail to prevent it.
…
Unfortunately Robinson got the restraint orders made against me in an impromptu hearing …
(Emphasis in original)
In her email to Mr Cassar of 6 August 2013, Ms Ryan said:
Please do not tell anyone you do not absolutely trust about this email. I have been threatened with jail to prevent me talking to you.
(Emphasis in original)
In her email of 29 August 2013 to, amongst others, Ms Debenedetti, Ms Browning, Mr Cassar and Mr Gabor, Ms Ryan said:
When I posted those two letters to you from Kemps Ck yesterday that was the first time I’d driven there since I was dismissed. I was terrified and got somewhat short of breath from when I was on the M7. Not so much because I was afraid of being spotted and of the police being called, but for no particular reason.
In her email of 1 September 2013, Ms Ryan said:
The restraint orders will b [sic] immediately removed via diff lawyers.
In her email to Mr Cassar of 2 September 2013, Ms Ryan said:
I realise that our settlement would involve me not speaking to Brian etc. again. I will agree to not contact them unsolicited, although I will consider writing them more letters if I have to and if they wish to speak to me they are very welcome. … The restraint orders will be removed, though. Those restraint orders are not only dodgy, they are illegal.
Those documents indicate that Ms Ryan not only knew that she had been ordered not to communicate with the persons listed in the schedule to Judge Lloyd-Jones’s Orders but that she also knew that serious and penal consequences might result if she breached them. The documents also indicate that Ms Ryan deliberately ignored his Honour’s orders despite knowing what they relevantly required. These matters suggest that Ms Ryan’s conduct was flagrant and contumelious.
Were both orders breached?
The evidence satisfies me that Mr Ryan received both Orders, the first by personal service and the second by other means.
Were the orders sufficiently clear?
It does not appear to me that either of the Orders was unclear or ambiguous in any way.
Conclusion
I find that the respondent has made out a prima facie case that it is in the interests of justice that compliance with r.29.07 be dispensed with.
I further find that the respondent has made out a prima facie case that Ms Ryan is guilty of contempt of this Court in that:
a)in breach of order 1 of the Orders of 25 July 2013 and in breach of order 20 of the Orders of 31 July 2013, the Ms Ryan contacted Brian Cassar, being a person listed in sch.1 to the Orders, on the following occasions:
i)by emails dated:
(A)6 August 2013;
(B)7 August 2013;
(C)29 August 2013, 10:16am;
(D)29 August 2013, 4:05pm;
(E)29 August 2013, 9:50pm;
(F)31 August 2013, 8:01am;
(G)31 August 2013, 9:21am;
(H)1 September 2013;
(I)1 September 2013 (by the website Domain.com.au);
(J)2 September 2013, 3:42pm;
(K)2 September 2013, 5:05pm;
(L)2 September 2013, 6:07pm;
ii)by letters sent by post on:
(A)1 August 2013;
(B)14 August 2013;
(C)30 August 2013 (2 letters sent on this date); and
iii)by telephone call made on 4 September 2013 to Sherone Cassar, wife of Brian Cassar.
b)in breach of order 1 of the Orders of 25 July 2013 and in breach of order 20 of the Orders of 31 July 2013, Ms Ryan contacted Les Gabor, being a person listed in sch.1 to those Orders, on the following occasions:
i)by emails dated:
(A)29 August 2013;
(B)31 August 2013;
(C)1 September 2013;
(D)2 September 2013, 3:42pm;
(E)2 September 2013, 5:05pm;
(F)2 September 2013, 7:19pm;
(G)3 September 2013 (by the website Domain.com.au);
(H)4 September 2013, 4:46pm (by the website Facebook);
(I)4 September 2013, 5:17pm (by the website Facebook);
ii)by telephone calls made on:
(A)3 September 2013 at 5:50pm;
(B)3 September 2013 at 6:39pm; and
(C)4 September 2013.
c)in breach of order 1 of the Orders of 25 July 2013 and in breach of order 20 of the Orders of 31 July 2013, Ms Ryan contacted Renee Debenedetti, being a person listed in sch.1 to those Orders, on the following occasions by emails dated:
i)29 August 2013;
ii)1 September 2013;
iii)2 September 2013, 3:42pm;
iv)2 September 2013, 5:05pm;
v)3 September 2013 (through the website Domain.com.au);
vi)3 September 2013 (through the website carsales.com.au); and
vii)4 September 2013.
d)in breach of order 1 of the Orders of 25 July 2013 and in breach of order 20 of the Orders of 31 July 2013, Ms Ryan contacted Anja Browning, being a person listed in sch.1 to those Orders, on the following occasions by emails dated:
i)6 August 2013;
ii)29 August 2013;
iii)1 September 2013;
iv)2 September 2013, 3:42pm; and
v)2 September 2013, 5:05pm.
e)in breach of order 1 of the Orders of 25 July 2013 and in breach of order 20 of the Orders of 31 July 2013, Ms Ryan contacted Leah Simmons, being a person listed in sch.1 to those Orders, on the following occasions by emails dated:
i)31 August 2013;
ii)1 September 2013;
iii)2 September 2013, 3:42pm; and
iv)2 September 2013, 5:05pm.
The respondent sought a finding that Ms Ryan is guilty of contempt because she contacted Mr Gabor by telephone on 3 September 2013 at 12.39pm and 12.40pm. I have not made such a finding because there was no evidence of Ms Ryan having called Mr Gabor then. The respondent also sought a finding that Ms Ryan is guilty of contempt because she contacted “Joseph Jimenez” by email on 31 August 2013. The orders referred to a “Joe Jiminez” and the email in question was addressed to “joe.jimenez@...”. In those circumstances, the particular allegation is not made out. Similarly, the respondent alleged that Ms Ryan is guilty of contempt because she contacted “Jerome Giraudel” by email, once on 1 September 2013 and twice on 2 September 2013. However, as the emails were relevantly addressed to “jerome.geraudel@...”, that allegation is also not made out.
Consequently, the matter will stand over to 25 October 2013 at 9.30am for directions concerning a further hearing so that Ms Ryan may have an opportunity to advance her defence to the allegations of contempt.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 3 October 2013