Industrial Registrar v Mejias [2007] NSWIRComm 145

Industrial Court of New South Wales

CITATION: Industrial Registrar v Mejias [2007] NSWIRComm 145

APPLICANT Industrial Registrar PARTIES: RESPONDENT Ric Mejias

FILE NUMBER(S): IRC 2972 of 2006

CORAM: Wright J President; Boland J; Staff J

CATCHWORDS: Contempt - Proceedings for contempt brought by Industrial Registrar - Contemnor dismissed from his employment - Unfair dismissal proceedings - Application by employer for non-disclosure order - Contemnor agreed not to publish evidence he proposed to give in unfair dismissal proceedings - Contemnor later broadcast or threatened to broadcast material prejudicial to his former employer contrary to agreement not to do so - Whether tendency to interfere with administration of justice - Improper pressure - Relevant principles - Capacity of litigant to withstand pressure - Publication or threatened publication of prejudicial material constituted real risk that former employer might have been dissuaded from properly prosecuting its defence in unfair dismissal proceedings and opting instead to settle matter on unsatisfactory terms - Respondent found guilty of contempt

Industrial Relations Act 1996 s 164A(2), s 180 LEGISLATION CITED: Listening Devices Act s 8 Industrial Relations Commission Rules 1996 r 237

Attorney-General v Times Newspapers Ltd [1974] AC 273 Australian Building Construction Employees' and Builders Labourers' Federation and Others v Minister of State for Industrial Relations and Others (1982) 43 ALR 189 Bhagat v Global Custodians Limited [2002] NSWCA 160 Clarkson v The Mandarin Club Ltd and Others (1998) 90 FCR 354 Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 Coward v Stapleton (1953) 90 CLR 573 Ex parte Bread Manufacturers; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 Federal Express v Mejias (No. 2) [2005] NSWIRComm 481 Federal Express v Mejias [2005] NSWIRComm 474 Harkianakis v Skalkos (1997) 42 NSWLR 22 CASES CITED: Industrial Registrar (NSW) v Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 Inghams Enterprises Pty Ltd and Another v Timania Pty Ltd and Another (2005) 221 ALR 823 Initial Services, Ltd v Putterill and Another [1967] 3 All ER 145 John Fairfax & Sons Pty. Ltd v McRae (1955) 93 CLR 351 Lion Laboratories Ltd v Evans and others [1984] 2 All ER 417 Novotny v Cropley [2005] NSWCA 26 Resolute Ltd & Anor v Warnes [2000] WASCA 359 The State of Victoria and Another v The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 Willshire-Smith v Votino Bros Pty Ltd and Others (1993) 41 FCR 496 Witham v Holloway (1995) 183 CLR 525

HEARING DATES: 28 May 2007

DATE OF JUDGMENT: 19 July 2007

APPLICANT Ms R Pepper of counsel LEGAL REPRESENTATIVES: Solicitor: Dr J Quilter

RESPONDENT Mr M Gibian of counsel

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: WRIGHT J, President BOLAND J STAFF J

Thursday 19 July 2007

Matter No IRC 2972 of 2006

INDUSTRIAL REGISTRAR v MEJIAS

Application for orders pursuant to s 180 of the Industrial Relations Act 1996 in relation to matter No IRC 1720 of 2005

JUDGMENT OF THE COURT [2007] NSWIRComm 145

1 These contempt proceedings were commenced in August 2005 when the Industrial Registrar sought declarations that Mr Ric Mejias, the respondent, had been guilty of contempt of the Industrial Relations Commission of New South Wales, as set out in an application for orders. If the respondent was found guilty, the applicant sought orders that he be punished, or otherwise dealt with. 2 The proceedings were brought pursuant to the provisions of s 180 of the Industrial Relations Act 1996 ("the Act"). 3 Section 153(2) of the Act requires that proceedings for contempt are to be dealt with by the Full Bench of the Industrial Court and s 164(2) enables the Court to exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission pursuant to s 180(2). Conduct is contempt only if the same conduct in relation to the Supreme Court would be contempt of that Court. Background 4 Ric Mejias commenced proceedings against Federal Express (Australia) Pty Ltd ("Federal Express") in which he sought relief pursuant to s 84 of the Act from alleged unfair dismissal. The respondent had been employed by Federal Express as a Senior Security Specialist. It was a term and condition of his employment that information which he acquired about his employer, its affiliates and its clients was to be kept confidential. The respondent's employment was summarily terminated on 14 April 2005 based on allegations of serious and wilful misconduct. In essence, the allegations included the fact that the respondent had gained improper access to certain tender documents, and created a conflict of interest by performing work for a client of Federal Express outside his normal employment duties and that he had improperly used certain computer resources. 5 During the course of the unfair dismissal proceedings, Federal Express sought orders by way of notice of motion, under s 164A(2) of the Act prohibiting the respondent from publishing certain material contained in documents filed, or received in evidence, in the proceedings. Section 164A gives the Court power to make non-disclosure orders by reason of the confidential nature of any evidence. Section 164A(3) permits the Commission, in certain circumstances, to make similar orders. The material that was sought to be suppressed was contained in an email dated 18 May 2005, which was attached to a statement filed by the respondent in the proceedings. It contained a number of specific alleged breaches of security in and about aircraft operations and made allegations against named persons within Federal Express concerning personal use of company mail systems, the distribution of pornographic material and coercion to bring about unfair dismissal of employees. In addition, breaches of policy, or Government regulations, were alleged and a large number of employees were named as offenders. The email also asserted that: [E]vidence to be provided in various courts may be extremely damaging to FedEx. I wish FedEx no harm and my intention is to resolve this quickly and amicably and receive the compensation sought below without the risk of this becoming a long and painful process for either party. 6 The respondent's email continued: Whilst I sincerely wish FedEx no harm, I am planning for the worst. My plans for the worst have included sending copies of over 42,408 emails, all investigation reports, memos, interview records, package loss information, CCTV files and much more related info to my solicitors in Sydney, Melbourne, Europe and the US with the expectation I may need to release extracts of this info globally for court cases or in the pursuit of compensation in other forms. Additionally, I have created a password-protected website to facilitate the access and transfer of relevant materials to appropriate regulators, media and legal teams in the expectation for the worst. 7 On 25 May 2005, during the course of the unfair dismissal proceedings, Commissioner Ritchie published a Statement that recorded the respondent's agreement not to publish any report of the threatened unfair dismissal proceedings, or any other evidence proposed to be given by the respondent in the proceedings. The respondent entered into this agreement in order to resolve Federal Express' application for formal orders against him. The Commissioner stood the notice of motion over generally giving each party leave to have it re-listed if the agreement was breached. 8 On 2 September 2005, the respondent sent an email addressed to various representatives of Federal Express entitled "Questions as to: Offences under the New South Wales Listening Devices Act 1984". The email requested the return of audio tapes and or electronic records in the possession of Federal Express. The respondent stated that this material had been recorded by him in his role as Senior Security Specialist with Federal Express and he had been led to understand that under s 8 of the Listening Devices Act it was an offence for any person not a party to the recorded conversations to have "Possession of record of private conversation". The email also stated: As a precautionary step and as a matter of courtesy I confirm I have emailed various departments of the Attorney General seeking advice on what if anything I need to do and also various news/media groups for their advice and experience given the fact that (sic) regularly audio record interviews. 9 A further email, which had become evidence in the Commission proceedings, was dated 13 September 2005. This email was addressed to a number of media outlets, including well-known current affairs programs broadcast on Australian national television channels. It was headed "Major Airline Uncovered - Part 1 of 7". It was also addressed to the chairman and other officers of Federal Express, although it is not clear whether it was forwarded to the parent company of Federal Express in the United States. There is a reference in that email to a number of alleged breaches of safety and regulatory matters and "finance policies", with particular reference to alleged international aviation breaches, customs breaches, assaults and robberies affecting employees of Federal Express whilst travelling. There was a threat to disclose the remaining six parts of the "story" and that the respondent looked forward "to questions and actions that facilitate an amicable resolution to outstanding issues." 10 On 11 October 2005, Federal Express filed an application to this Court seeking orders for the suppression of the material referred to in the emails of 18 May, 2 September and 13 September 2005. The basis of the application was the contents of the three emails sent by the respondent during the course of the unfair dismissal proceedings. 11 On 21 December 2005, Marks J made the following orders pursuant to s 164A(2) of the Act: 1. The Court prohibits the publication of the following matters contained in documents lodged with the Industrial Relations Commission of New South Wales or received in evidence by that Commission in matter number IRC 1720 of 2005, namely attachments T and V to the first statement of Ric Mejias filed 17 May 2005; paragraphs 8, 41, 42, 43, 44, 61, 70, 71, 72, 73 and 99 of the second statement of Ric Mejias filed 18 August 2005 and emails created by Ric Mejias dated 18 May 2005 and 13 September 2005:

2. The Court orders that access to the file of the Industrial Relations Commission of New South Wales in matter number IRC 1720 of 2005 and of this Court in matter number IRC 5240 of 2005 is restricted to the extent that no person or organisation may be granted access to the files other than a party prior to consultation by the Industrial Registrar with both parties to determine whether there is any objection to such access being granted.

3. The respondent is to pay the applicant's costs of the motion assessed in default of agreement.

See Federal Express v Mejias [2005] NSWIRComm 474.

12 In addition to seeking orders for suppression of the material, Federal Express sought a referral by the Court, of the Commission proceedings, to the Industrial Registrar so that consideration could be given to commencing proceedings for contempt against Mr Mejias. The application was based on the provisions of r 237 of the Industrial Relations Commission Rules 1996 which provides: Motion or proceedings by the Registrar (1) Where it is alleged, or appears to the Commission on its own view, that a person is guilty of contempt of the Commission, the Commission may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt. (2) Subrule (1) does not affect such right as any person other than the Registrar may have to commence proceedings for punishment of contempt. 13 In Federal Express v Mejias (No. 2) [2005] NSWIRComm 481, Marks J determined the application as follows (at [10]): In my opinion, the circumstances of these proceedings are such that I may conclude that it appears that Mr Mejias is guilty of contempt of the Industrial Relations Commission of New South Wales, constituted by the threat of publication of the material to which I have referred with a view to imposing improper pressure on FedEx to settle his proceedings other than on the merits of those proceedings. Having so concluded, it is appropriate, in my opinion, to direct the Registrar to apply either by motion for, or to commence proceedings, for punishment of that contempt. In reaching this conclusion I have regard to and accept the submissions made on behalf of FedEx that it is appropriate in all the circumstances that the Court so order, notwithstanding that the contempt is of the Commission constituted by the Industrial Tribunal. 14 His Honour made the following orders at [11]: 1. The Registrar is ordered to apply by motion for, or to commence proceedings for, punishment of the contempt identified in these reasons for judgment. For that purpose, the Registrar is directed to instruct the Crown Solicitor as to the initiation and conduct of such proceedings and to assist the Commission therein.

2. The respondent, Ric Mejias, is to pay the costs of the applicant in and arising out of these proceedings in an amount assessed in default of agreement, save that those costs shall be exclusive of costs payable under the costs order made in judgment delivered on 21 December 2005. The Charges and Particulars 15 It is appropriate to set out the charges brought by the Industrial Registrar against the respondent in these proceedings, together with the particulars. There are four charges, which are in the following terms: A. It is charged that the Respondent is guilty, pursuant to s 180 of the Industrial Relations Act 1996, of conduct which, had that conduct been engaged in relation to the Supreme Court, would have been contempt of the Supreme Court (contempt of the Commission), in that on 13 September 2005 he published or purported or threatened to publish an email addressed to a number of media outlets and persons in Federal Express (Australia) Pty Limited (Federal Express), and thereby did act in a manner which had a tendency to interfere with the administration of justice in its application to a proceeding then before the Industrial Relations Commission (Commission), No. 1720 of 2005, by way of a threat of detriment to Federal Express so as to put improper pressure upon a party to the proceedings to settle the proceeding.

Particulars The Respondent acted in a way that had a tendency to interfere with the administration of justice in its application to a proceeding then before the Commission in that: a. the Respondent and Federal Express were both parties to an unfair dismissal proceeding commenced by the Respondent in the Commission.

b. The Respondent made a threat of detriment to Federal Express by causing Federal Express to apprehend that an email dated 13 September 2005 from the Respondent addressed to various representatives of Federal Express, its related bodies corporate and to various international and local media organisations had been, or would be, sent and that unless Federal Express settled the proceedings either the particular email, or further similar emails, would be sent to such media organisations, thereby threatening to harm Federal Express' reputation and thereby deterring or attempting to deter Federal Express from defending the proceedings by placing improper pressure on it to settle or compromise the proceedings.

B. In the alternative to A, it is charged that the Respondent is guilty of contempt of the Commission, in that on 13 September 2005 he published or purported or threatened to publish an email addressed to a number of media outlets and persons in Federal Express, and thereby did act with the intent to interfere with the administration of justice in its application to a proceeding then before the Commission, No. 1720 of 2005, by way of a threat of detriment to Federal Express so as to put, or attempt to put, improper pressure upon a party to the proceedings to settle the proceeding. Particulars The Applicant repeats the particulars to paragraph A above. C. In the alternative to A and B, it is charged that the Respondent is guilty of contempt of the Commission, that between 18 May 2005 to 13 September 2005 he engaged in a course of conduct directed against Federal Express and thereby did act in a manner which had a tendency to interfere with the administration of justice in its application to a proceeding then before the Commission, No. 1720 of 2005, by way of a threat of detriment to Federal Express so as to put improper pressure upon a part to the proceeding to settle the proceeding.

Particulars The Respondent acted in a way that had a tendency to interfere with the administration of justice in its application to a proceeding then before the Commission in that: a. the Respondent and Federal Express were both parties to an unfair dismissal proceeding commenced by the Respondent in the Commission.

b. the Respondent made a threat of detriment by engaging in a course of conduct during the course of the proceedings between 18 May 2005 and 13 September 2005, thereby threatening to harm Federal Express from defending the proceeding by placing improper pressure upon it to settle or compromise the proceeding. The course of conduct comprised: i. an email dated 18 May 2005 sent by the Respondent and addressed to Mr Frederick W Smith, Mr David J Bronczek, and Mr David L Cunningham;

ii. an agreement published in a Statement by the Commission on or about 25 May 2005 to which the Respondent was a party, whereby the Respondent agreed to desist from publishing any report of proceedings or any evidence given or proposed to be given before the Commission ("the Statement");

iii. an email dated 2 September 2005 sent by the Respondent to Frederick W Smith, David Bronczek and Richard Jennings at Federal Express ("the 2 September email");

iv. the Respondent knowingly published the 2 September email in contravention of the Statement;

v. an email dated 13 September 2005 sent by the Respondent to various representatives of Federal Express and its related bodies corporate and addressed to various international and local media outlets ("the 13 September email"); and

vi. the Respondent knowingly published the 13 September email in contravention of the Statement. D. In the alternative to A, B and C, it is charged that the Respondent is guilty of contempt of the Commission, in that between 18 May 2005 to 13 September 2005 he engaged in a course of conduct directed against Federal Express with intent to interfere with the administration of justice in its application to a proceeding then before the Commission, No. 1720 of 2005, by way of a threat to detriment to Federal Express so as to put, or attempt to put, improper pressure upon a party to the proceeding to settle the proceeding. Particulars The Applicant repeats the particulars to paragraph C above. 16 It will be seen that Charge A refers to the email of 13 September 2005 and alleges that the respondent acted in a manner that had a tendency to interfere with the administration of justice. Charge B, which was pleaded in the alternative to Charge A, alleged that it was the respondent's intention to interfere with the administration of justice. 17 Charge C was pleaded in the alternative to Charges A and B and alleged that between 18 May and 13 September 2005 the respondent engaged in a course of conduct which had a tendency to interfere with the administration of justice. Charge D, pleaded in the alternative to Charges A, B and C, made the same allegation as Charge C except that by engaging in the course of conduct it was alleged the respondent intended to interfere with the administration of justice. Affidavit Evidence 18 Ms R A Pepper of counsel, who appeared for the applicant, relied on the following evidence: 1. Affidavit of Dr Julia Quilter, solicitor employed in the office of the Crown Solicitor, sworn 21 August 2006, which annexed the orders and judgments of Marks J. 2. Affidavit of Dr Julia Quilter sworn 30 November 2006, which annexed the transcript of proceedings before Marks J on 8 December 2005. 3. Affidavit of Mr Rhicke Jennings, the Managing Director of Federal Express, which annexed the emails from the respondent dated 18 May 2005, 2 September 2005 and 13 September 2005, together with the Statement of Commissioner Ritchie dated 25 May 2005. 19 Mr M Gibian of counsel, who appeared for the respondent, tendered an affidavit of the respondent, who was not required for cross-examination. In that affidavit, Mr Mejias, after summarising the circumstances surrounding his dismissal from Federal Express, stated that in addition to the unfair dismissal proceedings, there were a number of additional matters that needed to be resolved at that time. These included the payment of his statutory entitlements, the refund of outstanding business expenses, payment in lieu of notice and non-payment of overtime and allowances, which he believed he was entitled to. There was also an issue as to the return of certain personal items. 20 Mr Mejias deposed that he believed, at the time, it was necessary to approach senior officers in the company to resolve these issues. He acknowledged that on or around 18 May 2005, he sent an email message to Mr Frederick Smith (Chairman of the Board) and Mr David Bronczek (President and Chief Executive Officer of Federal Express). The email was headed "Settlement Negotiations". 21 Mr Mejias stated that his primary intention in sending the email was to try to get Federal Express to talk to him. He believed he was making reasonable claims and wanted the company to talk to him and to try and resolve the claims. Mr Mejias did this by pointing out the issues that he believed would necessarily come out in the course of the unfair dismissal proceedings, or other proceedings. These issues included that he believed the allegations against him were without substance, that he was treated more harshly than other employees and that there were other reasons for his dismissal, including that he had been involved in investigations into misconduct by managers. Mr Mejias further acknowledged that he made reference in the email to disseminating information to regulators, media and other persons. His affidavit evidence was that he had not really thought seriously about actually contacting regulators or the media and it was only a "last resort" in his mind. It was for this reason that he ensured there was never any way Federal Express could be identified, as he genuinely wished it no harm. He contended that he had attempted to make clear that he would only ever have done so "where appropriate", by which he said he meant where it was legal and proper to do so. 22 Although some of the issues raised by Mr Mejias were addressed by Federal Express, he stated that the company had refused to compensate him for business expenses of approximately $33,299.55. 23 This led Mr Mejias to forward a further email to Mr Smith, Mr Bronczek and Mr Richard Jennings, the Director, Oceania of Federal Express, on 2 September 2005 titled "Questions as to: Offences under the New South Wales Listening Devices Act 1984". Mr Mejias could not recall precisely what prompted his concern at the time, but believed it may have been as a result of security, risk management and fraud control courses he was undertaking at that time. His concern was that he may not have complied with the Listening Devices Act in relation to retaining copies of recordings made by him during his employment, which he thought could be the subject of a penalty. Mr Mejias stated it was a genuine concern on his part. 24 Mr Mejias deposed that he did not intend the email to constitute any kind of threat to the company and it did not have anything at all to do with the unfair dismissal proceedings. He said, except for employees being interviewed at each security interview, he was the only other person and principal party to the conversation and he was simply asking for a return of tapes and electronic records, he believed, he was required to retain by the Listening Devices Act. He explained his reference in the final paragraph to having emailed the Attorney General's Department and media groups as trying to seek advice concerning his obligations under the Listening Devices Act from Government and organisations that had experience in this area and nothing more. He stated he did not identify Federal Express to any other organisation. Mr Mejias stated that by this time he had assumed that there would be no settlement in the unfair dismissal proceedings which had been fixed for hearing with extensive written evidence and documents having been filed by him on or around 17 May 2005. 25 Mr Mejias continued to raise the unresolved issues with the company and forwarded further emails to the company on 5, 6 and 8 September 2005. 26 On 13 September 2005, Mr Mejias forwarded an email to Federal Express, raising issues that concerned him in relation to the work practice of some of its employees. He stated that this email did not have anything to do with the unfair dismissal proceedings and he did not intend the message to communicate any kind of threat in relation to those proceedings. He explained his reference in the final paragraph of the message to a resolution to "outstanding issues" as being a reference to the issues he had raised in the email and not the unfair dismissal proceedings, or the other claims that remained outstanding. Although, no longer an employee, Mr Mejias said he remained passionate about security, safety and regulatory compliance and believed these issues should be brought to the attention of senior office holders in the company. He stated that he prepared the email in the way he did because he thought he had to do something to make the officers of the company pay attention before they would act. He said that in addressing the message to media organisations, he thought it might help in ensuring that Federal Express took the matter seriously. Mr Mejias stated that he ensured the message did not identify Federal Express, and made clear that it was only if no action was taken that he would consider taking the matters to anyone else. He said that he had not decided at this stage what he would do. 27 Mr Mejias stated that after Commissioner Ritchie had reserved his decision in the unfair dismissal proceedings, Marks J heard and determined the application by Federal Express, seeking the Industrial Registrar file a notice of motion for contempt. This occurred on 8 December 2005. Mr Mejias was unrepresented during these proceedings due to his financial position and said that he did not understand the seriousness of the proceedings. He was ordered to pay the costs of the proceedings, which were assessed in an amount of approximately $39,000. 28 Mr Mejias deposed that since his dismissal, he has been endeavouring to establish his own business in the security investigation area. He is a Licensed Investigator and Commercial Agent and expressed his concern about the effect of these proceedings on those licenses. 29 Mr Mejias stated that the loss of his employment and the unfair dismissal proceedings and cost orders made against him have had a devastating impact, both financially and emotionally. He said that he was unable to take more than a few hundred dollars a month out of his business and had fallen substantially behind on his mortgage repayments. He had been trying to sell his property for more than 12 months without success and had been forced to rely upon his family and fiancée for financial support. He stated he was married on 28 April 2007. 30 Mr Mejias said that it had now become obvious to him that he was not able to cope with matters after his dismissal. Representing himself in the unfair dismissal proceedings was very difficult and stressful. He stated that he now thought that he would not have approached the company in the way that he did if he had not been in that situation. This was particularly so in respect of seeking to involve the media or other bodies. He contended that this was a symptom of his not coping. 31 Mr Mejias stated that he did not intend to do anything that interfered with the administration of justice in the unfair dismissal proceedings, or prejudiced the processes of the Commission. He said he hoped and believed that he had not done so, but that if he was found to have, he stated he was very sorry and unreservedly apologised to the Court. He acknowledged that he could have approached Federal Express about the issues he wanted to raise without threatening to involve regulators, media, or other outside groups and now knows that he should not have done that. He said he was truly sorry. Relevant principles

32 Both parties referred to the legal principles relevant to this matter. As the respondent noted in his submissions, the form of contempt relevant in these proceedings involves a person interfering with the due administration of justice by placing improper pressure upon a party to litigation. As Mr Gibian correctly observed, the underlying basis of this form of contempt is that all citizens should have unhindered access to the courts and a litigant should not be deterred from seeking vindication of his or her rights through the proceedings it is prosecuting or defending: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 319. 33 The respondent agreed with the applicant that the general principles applicable in the present matter are essentially set out in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-30 and Industrial Registrar (NSW) v Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 at [36]. The relevant principles set out by the respondent and/or the applicant, which we have elaborated, are as follows:

(a) The summary jurisdiction to punish for contempt is of an exceptional nature and should be exercised with great caution: The State of Victoria and Another v The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 133 and Resolute Ltd & Anor v Warnes [2000] WASCA 359 at [13].

(b) Being a form of criminal contempt, the charge must be proven to the criminal standard, that is, beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534; Harkianakis at 27; Uniting Church at [36.1].

(c) The applicant must demonstrate, to the criminal standard, that the conduct had, "as a matter of practical reality, a real and definite or clear tendency to interfere with the course of justice in a particular case": John Fairfax & Sons Pty. Ltd v McRae (1955) 93 CLR 351 at 372; Harkianakis at 27; Uniting Church at [36.2]; Clarkson v The Mandarin Club Ltd and Others (1998) 90 FCR 354 at 362.

(d) The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings, through dissemination of material, is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure: Willshire-Smith v Votino Bros Pty Ltd and Others (1993) 41 FCR 496 at 505; Harkianakis at 29 and Resolute Ltd & Anor v Warnes [2000] WASCA 359 at [13].

(e) Not all pressure placed on a party to proceedings to desist or proceed with the litigation will constitute contempt. As between parties to litigation a certain degree of pressure in permissible: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 326; Bhagat v Global Custodians Limited [2002] NSWCA 160 at [36]-[39] and Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 at [27].

(f) The question of whether pressure applied to a party to litigation may be described as proper or improper will frequently give rise to considerable uncertainty. Whether pressure was proper or improper must be considered in light of all the circumstances of the case read in the whole context, including the relationship between the parties: Bhagat v Global Custodians Limited [2002] NSWCA 160 at [38] and Uniting Church at [36.7].

(g) In Uniting Church it was stated at [36.4]: 4. There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of "the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of 'ordinary' fortitude who might be capable of influence by similar pressure applied in similar circumstances." ( Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd [2002] NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at par [49]: These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety. In the same case, in agreeing with the Chief Justice, Ipp AJA said at [54]: [A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.

(h) If a statement is reasonably capable of more than one meaning and one of those meanings does not involve contempt, a charge based upon that statement is not made out: Harkianakis at 40; Uniting Church at [37].

(i) A person accused of contempt is entitled to know the gist or substance of the charges against him or her: Coward v Stapleton (1953) 90 CLR 573 at 579-80 and Uniting Church at [47]-[48]. Where there is a Statement of Charge, the gist or substance of the allegations must be contained within the Statement of Charge and any particulars, and any deficiency cannot be remedied by resort to affidavit evidence: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31] and Inghams Enterprises Pty Ltd and Another v Timania Pty Ltd and Another [2005] FCAFC 155 at [32].

(j) A person accused of contempt is entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31] and Australian Building Construction Employees' and Builders Labourers' Federation and Others v Minister of State for Industrial Relations and Others (1982) 43 ALR 189 at 206-207.

Charge A

34 The essence of this charge was that on 13 September 2005 the respondent published, or purported or threatened to publish, an email addressed to a number of media outlets and persons in Federal Express and thereby did act in a manner which had a tendency to interfere with the administration of justice in its application to the unfair dismissal proceedings then before the Commission by way of a threat of detriment to Federal Express so as to put improper pressure upon a party to the proceeding to settle the proceeding. 35 The email of 13 September 2005 cannot be considered in isolation. The following antecedent facts are relevant:

(1) Mr Mejias was summarily dismissed on 14 April 2005. Prior to his dismissal he filed an application under s 84 of the Act seeking relief in relation to a threatened dismissal.

(2) Following the termination of the respondent's employment, there were a number of outstanding issues between himself and Federal Express in addition to the unfair dismissal proceedings. These included the payment of the respondent's statutory entitlements, outstanding business expenses, pay in lieu of notice, non-payment of overtime and allowances, and the return of personal items.

(3) The unfair dismissal proceedings were the subject of conciliation before a member of the Commission on 26 April 2005 but were not resolved.

(4) On 18 May 2005, the respondent sent an email message to Federal Express entitled "Settlement Negotiations". In the email the respondent: · Complained about his unfair termination; · Indicated an intention of sending emails containing various forms of information relating to investigations he had conducted at Federal Express involving allegedly, pornography, leadership failures, breaches of customs and aviation regulations "centred on management and upper management". The emails were to be sent to, inter alia, "regulators, insurance companies, media and others" on 24 May 2005. The inference available from the email was that unless there was settlement of the respondent's claims he would send the threatened emails; and · Identified his claims as: one month's salary in lieu of notice; work expenses; unpaid overtime; and compensation of 26 weeks' pay for unfair dismissal.

(5) Following receipt of the email dated 18 May 2005, Federal Express filed a notice of motion in the unfair dismissal proceedings seeking orders that the respondent return documents and not publicise the proceedings. The respondent agreed to the orders sought by Federal Express and a Statement was made by Commissioner Ritchie on 25 May 2005 recording the agreement.

(6) There were subsequently no further discussions between the respondent and Federal Express in relation to settling the unfair dismissal proceedings. (7) On 2 September 2005 the respondent sent to Federal Express the email relating to compliance with the listening devices legislation.

(8) On 5, 6 and 8 September 2005 the respondent sent to Federal Express emails seeking payment of outstanding business expenses, outstanding overtime payments and unpaid allowances. There was no mention in any of those emails of the unfair dismissal proceedings and no claim was made for compensation in relation to unfair dismissal. 36 The email of 13 September 2005 was clearly calculated to apply pressure to Federal Express. The unmistakeable inference to be drawn from the email is that unless certain things were done by Federal Express the respondent would broadcast or intended to broadcast to a number of media outlets, including "60 Minutes", "Today Tonight", "A Current Affair", the Sydney Morning Herald, as well as the Australian Council of Trade Unions and others, a seven part "story" detailing alleged management flaws, alleged breaches of regulations in the areas of safety, security and quality and alleged misconduct by members of management within Federal Express. 37 The things the respondent expected to be done by Federal Express in order to avoid the prospect of adverse publicity were explained by him in his affidavit tendered in the proceedings: At this time, I also wanted to raise with the company the issues that concerned me in relation to the work practices of some people within Federal Express. These were genuine concerns that I held and I thought it my responsibility to raise the issues with the company to ensure that they were addressed. I did this in the e-mail dated 13 September 2005… My intention in sending the e-mail was to raise the issues that concerned me. In my mind, the message did not have anything to do with the unfair dismissal proceedings. I certainly did not intend the message to communicate any kind of threat in relation to those proceedings. My reference in the final paragraph of the message to a resolution to "outstanding issues" was a reference to the issues I referred to in the e-mail and not to the unfair dismissal proceedings or the other claims I had made to Federal Express. I was very passionate about security, safety and regulatory compliance. Whilst no longer an employee I believed these outstanding issues should be brought to the attention of Senior Office holders and wished for them to be open in receiving such reports as a summary of issues. I intended to bring the issues to the attention of Federal Express officers and directors. I prepared the e-mail in the way that I did because I thought I had to do something to make the officers of the company pay attention before they would do anything. I thought that addressing the message to media organisations may help ensure that Federal Express took the matters seriously. Most of the e-mail addresses on the top of the message were made up and from recollection many of these bounced back. I ensured that the message did not identify Federal Express and made clear that it was only if no action was taken that I would consider taking the matters to anyone else. I hadn't decided at that stage whether I would ever actually do that. 38 The respondent's explanation is not convincing. It is evident from the email that the respondent continued to harbour resentment over his dismissal. In the email the respondent referred to his good service and how he had treated people with respect; that the absence of respect "can create an environment where a sense of win/win is difficult and can create resolute adversaries"; that management "get things wrong"; that it was not impossible for management to recover from lapses of judgment in failing to show respect "so long as we continue the principles of fairness, win/win, and respect for others". 39 The respondent stated in the email: Since my departure I have sensed emotional and disrespectful actions that have made it difficult to walk away in the spirit of good will . As I await a win/win response I remain fortunately to have the luxury of candour, honesty and commitment to remain unemotional yet resolved as I publish a 7 part story '******* UNCOVERED' (our emphasis). 40 The email then detailed the nature of the 'story' and concluded in the following terms: As always I look forward to questions and actions that facilitate an amicable resolution to outstanding issues (our emphasis ) . 41 There was no suggestion in the email, or in any of the earlier emails sent by the respondent, that his "outstanding issues" related to security, safety and regulatory non-compliance by Federal Express and that he wanted some action to be taken in respect of them purely for altruistic reasons. In the context of the earlier emails and the agreement the respondent entered into in the proceedings before Ritchie C, the very fact that the respondent was not candid in the email about what he claimed he was trying to achieve when it would have been a simple, straightforward matter of articulating his objective, and instead making references to it being "difficult to walk away", "awaiting a win/win response" and looking forward to "an amicable resolution to outstanding issues", lends strong support for a conclusion that the respondent's evidence is not to be accepted in relation to the reasons given for composing and sending the email. 42 In September 2005, the respondent's unfair dismissal claim was still to be heard by Ritchie C, and although the respondent disavowed an intention on his part to raise any matter connected with those proceedings in his email of 13 September, we consider that whilst he was careful to avoid mentioning anything to do with his claim, the respondent was making an artful attempt to bring pressure on Federal Express to settle. The email is not reasonably capable of bearing any other meaning.

43 The Court must be satisfied beyond reasonable doubt that the act of sending the email of 13 September 2005 constituted improper pressure being applied to Federal Express to settle and that it had, as a matter of practical reality, a real or clear tendency to interfere with the administration of justice in relation to the unfair dismissal proceedings. The respondent contended this was not the case for the following reasons:

(a) The determination of whether improper pressure has been applied involves the balancing different aspects of the public interest, particularly the public interest in the administration of justice and the public interest in the ventilation of matters of public concern: Ex parte Bread Manufacturers; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250 and Industrial Registrar (NSW) v Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 at [34]. The respondent's intention in preparing the email was to bring to the attention of senior management of Federal Express matters that were of concern to him, including issues of safety issues, regulatory issues and failures to comply with policies.

(b) There is plainly a public interest in employees being able to raise matters affecting the public both within and outside a company: Initial Services Ltd v Putterill and Another [1967] 3 All ER 145 and Lion Laboratories Ltd v Evans and others [1984] 2 All ER 417. That public interest must lead to the conclusion that a person cannot be prevented from raising issues of concern merely because proceedings are ongoing involving the employer.

(c) Federal Express is part of an enormous multinational corporate group operating around the world with substantial operations in Australia. It had, as would be expected, the support of legal advice and representation by a large law firm and counsel (including senior counsel) in the unfair dismissal proceedings: Novotny v Cropley [2005] NSWCA 26 at [10].

(d) By 13 September 2005, it was plain that Federal Express was very unlikely to be deterred in defending the unfair dismissal proceedings by any step taken by the respondent. The response of Federal Express to the email of 18 May 2005 demonstrated that it was properly advised, fully aware of the legal avenues available to it to defend its position and willing and able to utilise those legal remedies. This was further demonstrated by its conduct after 13 September 2005, including the actions of commencing the proceedings before Justice Marks .

44 We noted earlier that not all pressure to settle litigation will be improper. Whether pressure is improper will depend on all of the circumstances of the case: Bhagat at [38] per Spigelman CJ. In the present case, we have not accepted the respondent's contention that his only purpose in sending the email was to bring to the attention of senior management of Federal Express matters that were of concern to him. Rather, we have concluded, beyond reasonable doubt, that the email of 13 September was calculated to place pressure on Federal Express to settle the unfair dismissal claim. In this respect, the respondent threatened to publicly disclose sensational, damaging and confidential material adverse to the interests of his former employer and contrary to the agreement he had entered into on 25 May 2005 before Ritchie C. We conclude that such threats constituted improper pressure. 45 Pertinent to the question of whether the email had a tendency to interfere with the course of justice are the observations by Spigelman CJ in Bhagat at [46]-[49]: 46 I note that in Harkianakis at 29, in the context of determining whether a publication had a tendency to interfere with the course of justice, Mason P said at 29: "There is a question as to whether the tendency is to be measured against the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of 'ordinary' fortitude who might be capable of influence by similar pressure applied in similar circumstances". 47 His Honour did not determine the question in that case. His Honour referred to authorities that emphasise the effect of a contempt as constituting an interference with the administration of justice in a particular case and others that emphasise the effect on the administration of justice generally. 48 There are authorities which pose a distinction between an "objective" and a "subjective" test for the real tendency issue, preferring an objective test. In Resolute Limited v Warnes [2000] WASCA 359 at [19] Ipp J said: "In the circumstances, a primary question is whether the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice. This question depends on an objective assessment of the relevant material. The court must 'ascertain whether the publication is such as may affect the minds of reasonable men': Fry v Bray (1959) 1 FLR 366 at 376."

(See also Attorney-General v Hislop [1991] 1 QB 514 at 526; Vajda v Nine Network Australia Limited [2000] NSWSC 873 per Bell J at [12]-[15]; see also Borrie and Lowe, The Law of Contempt esp at 208-210.) 49 These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety. 46 The respondent contended that Federal Express was very unlikely to be deterred in defending the unfair dismissal proceedings by any step taken by the respondent. It was contended that Federal Express was a multi-national organisation with a large law firm and senior counsel at its disposal; that the response of Federal Express to the email of 13 September 2005 demonstrated that it was properly advised, fully aware of the legal avenues available to it to defend its position and willing and able to utilise those legal remedies. 47 Reliance was placed on Novotny at [10] where it was stated by Hodgson JA (Handley and Santow JJA agreeing) that: 10 In this case, it is relevant that the letter in question was sent by a firm of solicitors to an unrepresented litigant, who was therefore in a position of some vulnerability, as compared with a litigant represented by solicitors to whom such a letter might have been addressed. However, in my opinion there is still a question of whether the material had, as a matter of practical reality, a real and definite tendency to interfere with the course of justice. Insofar as this is a question of fact, it must be resolved, not on the balance of probabilities but beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525. 48 At [11]-[17] his Honour went on to hold: 11 It is plain that the letter did not, in fact, interfere with the course of justice. The claimant's response was not to accede to the suggestion in the letter but to continue the appeal and to bring these proceedings for contempt. 12 The assertions in the letter, which were expressed as the views of the solicitors, have been shown to be incorrect. However, in all the circumstances, I am not satisfied to the requisite standard that the letter had the necessary real and definite tendency to interfere with the course of justice. 13 As regards the events occurring in September and October 2004, the claimant submitted that these events interfered with the course of justice by unreasonably delaying the proceedings. In my opinion, they have the character of an attempt to resolve the proceedings, and do not amount to an interference with the course of justice such as could possibly amount to a contempt of court. 14 Even if my view on those matters were wrong, in my opinion the claimant clearly fails on the second issue, that is, the question whether the opponent, as distinct from her solicitors, could be held responsible. … 17 In this case, the circumstances are not such as to justify an inference, and certainly not an inference beyond reasonable doubt, that the opponent herself was involved in the preparation of the letter in such a way as to make her personally responsible for its contents, or in the conduct of the appeal in September and October 2004 so as to be guilty of contempt if those matters were considered capable of constituting contempt. 49 Novotny does not suggest any more than what Spigelman CJ referred to in Bhagat, that is, it may be appropriate to consider the particular vulnerability or the characteristics of the recipient of the communication. However, because a litigant is well-resourced, has access to legal advice and there are legal remedies available, such as non-disclosure orders or injunctive relief, it does not necessarily follow that a real and definite tendency to interfere with the course of justice is thereby precluded. If it were otherwise, no action for contempt could arise in circumstances where improper pressure is applied to such a litigant by a threat to publish material adverse to its interests in order to induce it to settle on the basis of an unsatisfactory compromise. 50 In this respect, we agree with the following observations of O'Loughlin J in Willshire-Smith (at 505): In assessing whether the requisite degree of inhibition [from availing onself of a court of law] might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain could ever establish the existence of a risk of inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective. 51 Federal Express were sufficiently concerned about the nature of the prejudicial material published or threatened to be published by the respondent that it moved the Court for orders under s 164A of the Act prohibiting the publication of matters contained in documents filed with the Commission or received in evidence by the Commission in Matter No IRC 1720 of 2005; that is, the unfair dismissal proceedings before Ritchie C. Marks J made the relevant orders in his decision of 21 December 2005. Many of the matters in the filed documents were the same, or substantially the same, as matters referred to in the email of 13 September 2005.

52 Conduct which is calculated to subject a litigant to such obloquy as to shame or dissuade the litigant from availing himself or herself of a court of law may amount to contempt: Attorney-General v Times Newspapers at 302 per Lord Morris of Borth-y-Gest and at 310 per Lord Diplock. The publication or threatened publication of the prejudicial material referred to in the email of 13 September 2005 constituted a real risk that Federal Express might have been dissuaded from properly prosecuting its defence in the unfair dismissal proceedings and opting instead to settle the matter with the respondent on terms that it may have regarded as unsatisfactory. 53 Accordingly, in relation to Charge A, we find that the conduct of the respondent tended to interfere with the due administration of justice in its application to a proceeding then before the Industrial Relations Commission in Matter No IRC 1720 of 2005, by way of a threat of detriment to Federal Express so as to put improper pressure upon a party to the proceedings to settle the proceeding. 54 Given our findings in relation to Charge A and since Charges B, C and D are pleaded as alternatives to that Charge, it is unnecessary to deal with those Charges. Orders

55 The Court makes the following orders: (1) By his conduct in composing and sending the email of 13 September 2005, Ric Mejias is guilty of contempt of the Industrial Relations Commission of New South Wales. (2) In relation to the question of penalty and any consequential orders, the matter is listed for directions before the Full Bench, or a member thereof at 9.30am on Monday 30 July 2007. ______________

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