FEDERAL COURT OF AUSTRALIA Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 CONTEMPT OF COURT – what constitutes – proceedings commenced – intention to punish plaintiff – termination of contract – whether termination lawful Attorney-General's Application, Attorney-General v Butterworth, In re [1963] 1 QB 696 followed Attorney-General v Times Newspapers Ltd [1974] AC 273 applied Carew v Carew Corporation Pty Ltd (unreported, 23 April 1993, Supreme Court of Western Australia, Full Court) distinguished Castledine v Boronga Pty Ltd [2000] WASC 215 distinguished Chapman v Honig [1963] 2 QB 502 applied Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 cited Coward v Stapleton (1953) 90 CLR 573 cited Doyle v The Commonwealth of Australia (1985) 156 CLR 510 cited Harkianakis v Skalkos (1997) 42 NSWLR 22 cited Hinch v The Attorney-General for the State of Victoria (1987) 164 CLR 15 cited John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 followed Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 cited Meissner v The Queen (1995) 184 CLR 132 cited Morris v Wellington City [1969] NZLR 1038 cited Regina v Kellett [1976] QB 372 distinguished Regina v Odhams Press Ltd Ex parte Attorney-General[1957] 1 QB 73 followed Regina v Toney [1993] 1 WLR 364 approved The St. James' Evening Post Case: Roach v Garvan 2 Atk 469 [26 ER 683] referred to The State of Victoria v The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 cited Witham v Holloway (1995) 183 CLR 525 applied TIMANIA PTY LTD and WAYNE TONER v INGHAMS ENTERPRISES PTY LTD V 415 of 2004 FINKELSTEIN J 9 JUNE 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 415 of 2004 BETWEEN: TIMANIA PTY LTD and WAYNE TONER Applicants AND: INGHAMS ENTERPRISES PTY LTD Respondent JUDGE: FINKELSTEIN J DATE OF ORDER: 9 JUNE 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicants be granted leave to amend their statement of charge filed 13 May 2004 to read: As Against Christopher Turner: On about 23 April 2004 you did instruct persons within Inghams Enterprises Pty Ltd that no extra work should be given to Timania Pty Ltd whilst Wayne Toner and Timania Pty Ltd were suing Inghams Pty Ltd. As Against Inghams Enterprises Pty Ltd: On and from 23 April 2004, Inghams Pty Ltd refused to grant extra work to Wayne Toner and Timania Pty Ltd for the reason that Timania Pty Ltd and Wayne Toner are suing Inghams Pty Ltd. 2. Inghams Enterprises Pty Ltd be adjudged guilty of contempt and until further order it shall continue to engage Timania Pty Ltd in accordance with the contract made in April 2004 to carry all additional produce from its depot in Thomastown to the storage facilities in Doveton provided however that it be at liberty to apply to discharge this injunction on 72 hours' notice. 3. Christopher Turner be adjudged guilty of contempt and he be fined $5000, such fine to be paid within 14 days to the District Registrar of the Federal Court. 4. If the fine is not paid within the time specified in order 3 the District Registrar shall take action to recover the said amount and shall pay it to the Commonwealth. 5. Inghams Pty Ltd pay the applicants' costs of this motion, such costs to be taxed on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 415 of 2004 BETWEEN: TIMANIA PTY LTD and WAYNE TONER Applicants AND: INGHAMS ENTERPRISES PTY LTD Respondent JUDGE: FINKELSTEIN J DATE: 9 JUNE 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Mr Toner, through his company Timania Pty Ltd, is in the trucking business. Timania owns two or three trucks and most of its business involves carting fresh and frozen chicken for Inghams Enterprises Pty Ltd. Mr Toner and Timania (together I will refer to them as the applicants) are in dispute with Inghams. The dispute relates to the circumstances in which Timania started its trucking business. Mr Toner says that in 1985 Timania agreed to purchase from Wayne Alexander a truck for $12,000 and Alexander's right (it is unclear whether it was by assignment of Alexander's contract with Inghams or a new contract between Toner and Inghams) to cart processed chickens for Inghams for $33,000. The applicants allege that Inghams made certain false representations which induced them to enter into the agreement with Alexander and as a result they suffered loss. The precise nature of their claim is a little confusing but the details are not presently relevant. What is relevant is that on 31 March 2004 the applicants commenced an action against Inghams in the Federal Court of Australia in which they claim damages and other relief founded on the alleged misrepresentations. 2 The Federal Court action is the genesis of the present proceeding. The applicants contend that Inghams, at the instigation of its Director for the Southern Region, Mr Turner, withdrew cartage work from Timania following the institution of the Federal Court action. Accordingly, the applicants have preferred charges of contempt against Inghams and Mr Turner (jointly I will refer to them as the respondents). The charges were stated as follows: As against Inghams: "On or about 23 April 2004 Chris Turner, employed by the respondent as its Southern Regional Manager did telephone persons within the respondent including Mark Lawler of the respondent and did say to them on behalf of the respondent that there was no more extra work for Wayne Toner, the second applicant, whilst he Toner, is suing the respondent." As against Mr Turner: "On or about 23 April 2004 you did telephone persons within the respondent including Mark Lawler of the respondent and did say to them there was no extra work for Wayne Toner, the second applicant, whilst he Toner, is suing the respondent". The alleged contempt is that Inghams and Mr Turner interfered with the due administration of justice. This is a serious allegation and, not surprisingly, has been taken seriously by the respondents. 3 Most of the facts are not in dispute. To the extent that they are, I will act on the basis that the charges must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525, 534. Timania has been carting chicken for Inghams since 1985 under successive fixed term agreements. The current agreement is due to expire in May 2007. According to this agreement Timania is required to cart chicken from Inghams' depot at Somerville to its depot in Thomastown and then from the Thomastown depot to an outside storage facility in Doveton. In January 2004 Mr Toner was informed of the closure of Inghams' freezer facilities at Thomastown and the subsequent need to transport additional loads of chicken to Doveton. Mr Toner asked Mr Morelee, Ingham's Distribution Manager for Victoria, whether he could pick up the additional work if he purchased another truck; an extra truck was required to transport the additional loads. Mr Morelee told Mr Toner that he would get the extra work if he matched the price charged by ID Transport Pty Ltd, which is another haulage company used by Inghams. 4 In April 2004 Mr Toner obtained a Volvo Prime Mover for testing. He took the prime mover to Inghams' Somerville premises and on approximately three occasions Mr Moralee accompanied Mr Toner on his deliveries in the new vehicle. That same month Timania purchased the prime mover for a total price of $229,840 with borrowed funds. Mr Morelee knew that the acquisition was being financed and that Timania required the income from the additional runs to help cover the cost of the loan. In mid April 2004 Mr Moralee confirmed that the additional work would go to Timania once it was agreed that Timania would match the rates charged by ID Transport. At this point Mr Toner was entitled to assume that Timania would receive all the additional work if it kept its price competitive and did the cartage work as required. How this will affect the terms of the contract which they negotiated need not be resolved on this application. 5 When Mr Toner purchased the prime mover he spoke to Mr Lawler, who is responsible for the distribution of stock and transport at the Thomastown depot, and asked when he could commence carrying the additional loads. Mr Lawler obtained confirmation on 19 April that Timania would be given the additional work and two days later informed Mr Toner that he could begin the additional runs on the following day, Friday, 23 April. On that day Mr Toner was given his roster for the following week. The roster records Mr Toner's usual runs at 9am on Monday, Tuesday, Wednesday and Friday, as well as the additional loads which were to be carried at 11am on Tuesday and Friday. 6 Unbeknown to Mr Toner, events were unfolding which would result in the termination (or more likely the repudiation) of Timania's contract to carry the additional loads. These events had their genesis with Inghams' weekly management meeting which was held on Thursday, 22 April 2004. Among the ten senior Ingham employees present were Mr Turner (the most senior person at the meeting) and Mr Lawrence, the Plant Manager at Thomastown. During the meeting Mr Turner mentioned that Mr Toner (he may have also mentioned Timania) had commenced an action against Inghams. Mr Turner knew very little about the action; he had not seen a copy of the statement of claim, Inghams' solicitors had not discussed the claim with him and he described his own involvement with the case as "little to none". The details of the claim were not discussed. Mr Turner mentioned the action because Mr Toner had been invited to Inghams' golf weekend and he voiced the opinion that Mr Toner should not attend whilst the proceedings were on foot. Those present agreed and Mr Toner's invitation was subsequently withdrawn. Mr Lawrence then informed Mr Turner of the new contract with Mr Toner. Mr Turner canvassed whether Inghams should be providing additional work to Mr Toner in light of his action against Inghams. Mr Turner said that "[t]he general view expressed at the meeting [was] that it was not a good idea for … Inghams to allow [Mr Toner] to do delivery services other than his usual runs." 7 Mr Turner proffered an explanation for this view. He deposed that he was concerned that "if for some reason Toner was successful [in his action against Inghams] then the last few months of his income could be assessed to determine the extent of his claim and this could include income derived from the additional work." He gave the same explanation during cross-examination. I have no hesitation in rejecting his explanation. First Mr Turner did not impress me as a witness. I had the clear impression that Mr Turner, who was well aware of the difficult position he was in, was prepared to say whatever he thought necessary to avoid a finding of contempt. In passing I should mention Mr Turner's conduct in court, conduct which I have tried to put out of my mind (but perhaps not with complete success) while assessing his credibility as a witness. During the cross-examination of another Inghams' employee, I observed Mr Turner making signals to the witness indicating how he should answer questions. The signals included nodding and shaking his head, which I took to be an indication that the witness should answer yes or no (as the case may be), as well as mouthing words. I also saw the witness hesitate before answering questions, I suspect to allow the witness to take instruction as to the appropriate answer. What extraordinary conduct, especially for a person who is being tried for contempt. When I pointed out what was happening, his lawyer asked Mr Turner to leave the courtroom until the conclusion of the evidence. 8 The second reason for rejecting Mr Turner's explanation is that if he wanted to protect Inghams from additional damages, I believe that he would have said so at the meeting. I am satisfied that this did not happen. First Mr Turner did not say that he mentioned this concern at the meeting. The only other attendee to give evidence was Mr Lawrence. Mr Lawrence's affidavit made no reference to Mr Turner making any statement with respect to mitigating Ingham's loss. During cross-examination Mr Lawrence made what I regard as a feeble attempt at supporting Mr Turner. He said: "We discussed [Mr Toner] at the meeting, whether Wayne could go on the golf trip, given the legal writ, and he said: 'What do you think we should do? Should we just keep to the current agreements? Should we be' – or words to this effect – 'giving him more income or extra business,' and we sort of didn't make a concrete decision, just thought we shouldn't be adding to his business – or his, you know, extra deliveries." In my view Mr Lawrence gave this evidence for the sole purpose of backing up Mr Turner, without regard to its truthfulness. 9 The third reason for rejecting Mr Turner's explanation is that if he made any comment about protecting Inghams at the meeting, other attendees would have been called to verify that evidence due to its importance. The other attendees were not called and no explanation was given for their absence. I assume, as I am entitled to do, that they were not called because their evidence would not have supported Mr Turner. 10 The final reason arises from correspondence that passed between Middletons, who act for the applicants, and Freehills, the solicitors for the respondents. I will deal with that correspondence, as well as the inferences to be drawn from it, later in these reasons. 11 At this point it is convenient to identify another disputed matter, a matter which is of some importance to the charges. Mr Turner said that no firm decision was taken at the meeting in relation to whether Timania should undertake delivery services other than its usual runs. Mr Turner also said that he told those present that he would give the matter more thought. 12 Mr Lawrence provides limited support for Mr Turner's evidence on this score. Once again there is no reference in his affidavit to verify Mr Turner's evidence. Rather, Mr Lawrence's support comes about in the following way: Mr Lawrence deposes that a day after the meeting he told Ashley Willox and Anthony Rosano, his supervisors at Thomastown, that "[t]he extra work which Wayne [Mr Toner] was performing might not go ahead" (my emphasis). 13 There is, on the other hand, a great deal of evidence which leads to the conclusion that the decision to cancel the contract for additional work had been taken at the meeting or shortly thereafter. First there is Mr Lawrence's recollection of what Mr Turner said at the meeting. Mr Lawrence deposes that "Turner said words to the effect that he thought we should not be giving Toner any extra business and a number of people agreed, including myself." This is not the language of indecision. If this be an accurate summary of what Mr Turner said, the decision had unmistakably been taken. 14 Then there is Mr Willox's account of his conversation with Mr Lawrence. On the morning of 23 April 2004 he was told that Inghams were not to use Mr Toner any more. Mr Willox was not called to give that evidence. It came from Mr Lawler, the Leading Hand. Mr Willox passed on to Mr Lawler (who deposed that he "had no reason to doubt what [he] had been told by Willox") the content of his conversation with Mr Lawrence about an hour after it occurred. Later that morning Mr Lawrence said to Mr Lawler: "I have spoken by telephone with Chris Turner and Inghams are no longer to use Toner … Toner apparently has some legal proceedings against the company." It is inconceivable that Mr Lawrence would tell two employees that a decision had been taken to cancel Timania's contract for the additional runs if on the previous day Mr Turner had told him that the matter was still under consideration. 15 In these circumstances I reject Mr Turner's and Mr Lawrence's assertion that no final decision had ever been taken to cancel Timania's contract. It is clear that the decision was taken either at the management meeting or shortly thereafter, and certainly no later than early Friday morning. 16 I find the facts to be as follows. Mr Turner decided that Timania should not be allowed to carry any extra loads. Two reasons informed his decision: one was to punish the applicants for bringing the Federal Court action and the other, which follows from the first, was to put financial pressure on the applicants to withdraw the action. Mr Lawrence was instructed (probably by Mr Turner) to implement the decision. Mr Lawrence subsequently informed Messrs Willox and Lawler that Mr Toner would no longer be given extra work. It was the responsibility of one of these gentlemen to see that the instruction was implemented. 17 This is just what happened. On Tuesday, 27 April 2004 Mr Toner arrived at the Thomastown depot to load his truck for an ordinary delivery to Doveton. Mr Lawler informed him that he would no longer be doing the additional runs. I have both Mr Toner's and Mr Lawler's account of the conversation. There is very little difference between them. The only difference is that Mr Toner recalls being told the reason why he would no longer be given the extra work. Mr Toner attributes to Mr Lawler the statement that he, Mr Lawler, had been told by Mr Turner that there would be "no more extra work for Toner whilst he is suing the company". Mr Lawler does not recall making this comment. I believe that he did: they were his instructions and there was no reason for him not to pass them on. 18 The correspondence between Middletons and Freehills confirms that a decision had been taken to cancel Timania's contract for the additional work because of the Federal Court action. Two days after the contract was terminated Middletons wrote to Freehills making complaint on behalf of their clients. Middletons advised that their instructions were that: "Mr Chris Turner, the Southern Region Manager of [Inghams] had directed that no additional loads were to be delivered by Timania Pty Ltd because of the proceedings commenced in the Federal Court." They went on to note: "This is a matter of utmost concern … and would appear … to be an action undertaken solely because of the proceedings brought by [Timania and Mr Toner] in the Federal Court." Middletons then threatened to take unspecified action unless "the previously agreed delivery of additional product by our client [was] immediately reinstated". 19 Freehills responded on the following day. Several points should be made about their letter. First, Freehills did not deny that the contract to carry the additional products had been terminated. Indeed, Freehills acknowledged that an arrangement had been reached with Timania under which it "would provide some additional delivery services for [Inghams], services which were ordinarily undertaken for [Inghams] by contractors." The letter states that Inghams was "entitled to determine when and how the additional delivery services [were] provided", the inference being that in accordance with the contract Inghams had decided that Timania's services were no longer required. Secondly, Freehills did not deny the more serious allegation that the agreement had been terminated because the applicants instituted the Federal Court action. 20 Freehills' letter made an offer that Timania could continue providing additional delivery services on condition that it acknowledged in writing that (1) any such arrangement was independent of any other agreement between the parties; (2) Inghams would not be treated as having made any representation as to the extent of the additional delivery services; and (3) Inghams had the right to cancel the arrangement on reasonable notice being not less than fourteen days. The third acknowledgment would have been of great benefit to Inghams. It is likely that much longer notice had to be given to end the contract. 21 In any event, the offer was rejected on 3 May 2004. In their letter of rejection Middletons made the obvious comment that Freehills had "not addressed the central fact that [Timania] was advised that additional work was to be withdrawn because of [Timania's] decision to commence proceedings in the Federal Court". To my mind Freehills' failure in both letters to deny that the contract had been terminated and that the reason for the termination was the Federal Court action confirms the truth of the opposite propositions. There are two reasons. First, if Middletons' assertions were untrue, it would be natural for them to be denied by Freehills. Their response studiously avoided answering the critical allegations being made against their client. Secondly, no effort was made at trial to explain the omission in the correspondence, though it was clear why the applicants were putting the letters into evidence. 22 I now turn from a recital of the facts to deal with the law. The law of contempt exists to safeguard the public interest in the due administration of justice. It ensures that disputes are resolved by courts without any unacceptable interference with that process. In 1742 Lord Hardwick in The St. James' Evening Post Case: Roach v Garvan 2 Atk 469, 471 [26 ER 683, 684-685] said: "There are three different sorts of contempt. One kind of contempt is, scandalising the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons before the cause is heard. There cannot be any thing of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters." 23 The categories of conduct which may constitute a contempt are not fixed. Any act or omission which interferes (or has the tendency to interfere) with the due administration of justice may constitute a contempt. The conduct in this case concerns interference with parties to a proceeding. The general principle which underlies this form of contempt was described by Lord Diplock as requiring "that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities": Attorney-General v Times Newspapers Ltd. [1974] AC 273, 309. Here the law is concerned with two aspects of the administration of justice, viz: interference in a particular case (as is presently alleged) and interference which tends to inhibit litigants from seeking access to the courts. 24 An important feature of this type of contempt is that it is a "strict liability" offence, in the sense that it is not necessary to prove that the defendant intended to interfere with the due administration of justice. In Regina v Odhams Press Ltd. Ex parte Attorney-General[1957] 1 QB 73 a newspaper published an article alleging that a person had been involved in keeping brothels and protecting prostitutes. The article called for his arrest. Neither the reporter, editor nor newspaper proprietor was aware that criminal proceedings were already pending against the person. This did not provide a defence. Lord Goddard CJ, Pilcher and Ashworth JJ explained (at 80) that: "The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result, just as it is no defence for the person responsible for the publication of a libel to plead that he did not know that the matter was defamatory and had no intention to defame. It is obvious that if a person does not know that proceedings have begun or are imminent, he cannot by writing or speech be said to intend to influence the course of justice or to prejudice a litigant or accused person, but that is no answer if he publishes that which in fact is calculated to prejudice a fair trial." In this context "calculated to interfere with the administration of justice" does not mean "intended to interfere with the administration of justice". It means "inherently likely so to interfere": In re Attorney-General's Application, Attorney-General v Butterworth [1963] 1 QB 696, 726 per Donovan LJ. 25 Courts in this country have also rejected intention as an ingredient of the offence. For example, in John Fairfax & Sons Pty. Ltd. v McRae (1955) 93 CLR 351, another newspaper case, Dixon CJ, Fullagar, Kitto and Taylor JJ (at 371) said: "The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to circumstances." See also Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245, 258; The State of Victoria v The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, 56. 26 Another feature of the offence is that it is only necessary to show to the criminal standard that the conduct has a "real and definite tendency" or "clear tendency" to prejudice pending or future proceedings: Hinch v The Attorney-General for the State of Victoria (1987) 164 CLR 15, 34, 47. As Mason P explained in Harkianakis v Skalkos (1997) 42 NSWLR 22, 29 "[s]uccesful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure". 27 It is impossible to identify with precision the type of conduct which will amount to a contempt. Most often the conduct will be pressure directed to a person who is involved in litigation. By pressure, I include inducements, persuasion, threats and reprisals. In considering when pressure will amount to contempt a distinction must be drawn between pressure on a witness or jury member, pressure on parties and pressure on a judge. Certain pressure can properly be brought to bear on parties but not on a judge, jury or witness. In the case of parties we are concerned with pressure which has the tendency to deter or inhibit them from bringing or defending proceedings. But not all pressure of this character will be unlawful. There are quite a number of circumstances where it will be legitimate to pressure a party to discourage him from prosecuting his claim or defence, especially in civil litigation: Attorney-General v Times Newspapers Ltd. [1974] AC 273, 317-318 per Lord Simon. Two examples will suffice. Every lawyer is familiar with the difficult client who unreasonably pursues a claim or defence. Here the lawyer is bound to put some pressure on his client to withdraw or modify his claim or abandon his defence. Another example is of an offer of compromise. The principal object here is to put pressure on the opposite party to settle the case. The more reasonable the offer the greater the pressure. Pressure in these situations will not constitute contempt. 28 On the other hand, certain types of pressure will be illegitimate. The difficulty lies in distinguishing between what is proper pressure and what is not. Any act done with the intention of punishing a litigant for bringing or defending an action will be contempt. In re Attorney-General's Application, Attorney - General v Butterworths [1963] 1 QB 696 is a useful example. In that case there was an attempt to deprive a witness of his honorary position with a trade association for giving evidence against some of their members. Lord Denning MR said (at 723) that "the victimisation of a witness is only a contempt of court if it is done with the purpose of punishing him for having given evidence in the sense he did." See also Morris v Wellington City [1969] NZLR 1038 where an employee was dismissed because he gave evidence against his employer. Wilde CJ (at 1040) said that "it is a contempt of Court to penalise a witness in regard to his employment or office if that is done with the purpose of punishing him for having given evidence in the sense he did, or if that purpose is one of those actuating the step taken." 29 Then there are cases which suggest that there will only be a finding of contempt if the means used to impose the pressure is unlawful. In Regina v Kellett [1976] QB 372 Stephenson LJ (at 392) said that the interference "must be unlawful or improper, such as force or a threat of force, a reward or the promise of a reward." This view is too narrow. In Regina v Toney [1993] 1 WLR 364, 369 the Court of Appeal confined Regina v Kellett to a situation where the pressure was designed to achieve a legitimate end, such as persuading a witness to speak the truth. If, on the other hand, the pressure was to bring about an illegitimate result there may be a contempt even if lawful means are employed: Regina v Toney [1993] 1 WLR 364, 370 ("[T]he offence of interfering with a witness can indeed be committed where the defendant has not used any threat or other improper means of persuasion"). This is consistent with the High Court's view in Meissner v The Queen (1995) 184 CLR 132 though by way of parenthesis I should add that any criticism of Regina v Toney by Brennan, Toohey and McHugh JJ (at 142) may have proceeded on a misreading of the Court of Appeal's decision. 30 I find Attorney-General v Times Newspapers Ltd. [1974] AC 273to be the most instructive case in this area though it concerned a different kind of contempt from that in issue in this case. Actions for damages had been brought against the manufacturer of the drug thalidomide. It was alleged that children had suffered severe injuries whose mothers had taken the drug during their pregnancies. The Sunday Times published an article designed to pressure the manufacturer to increase the quantum made in settlement offers. It was alleged that the publication of the article constituted a contempt. The complaint was that the publication put indirect pressure on the defendant to compromise its claim and not go on with its defence. The speeches of the Law Lords provide important guidance for the present case. Lord Reid said (at 294): "The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice." He went on (at 297-298): "So I would hold that as a general rule where the only matter to be considered is pressure put on a litigant, fair and temperate criticism is legitimate, but anything which goes beyond that may well involve contempt of court. But in a case involving witnesses, jury or magistrates, other considerations are involved: there even fair and temperate criticism might be likely to affect the minds of some of them so as to involve contempt. Finally he said (at 299): "The crucial question on this point of the case is whether it can ever be permissible to urge a party to a litigation to forgo his legal rights in whole or in part. The Attorney-General argues that it cannot and I think that the Divisional Court has accepted that view. In my view it is permissible so long as it is done in a fair and temperate way and without any oblique motive. Lord Morris said (at 302-303): "Various types of behaviour which in the past have been brought to the notice of courts as involving 'contempt' have furnished illustrations of circumstances which have been regarded by courts as requiring condemnation. A study of decided cases helps to show the attitude of courts at different times and a certain pattern emerges. I doubt whether it is either desirable or possible to frame any exact or comprehensible definition or to formulate any precise classifications. … There might be steps taken wrongfully to influence witnesses – as by methods of intimidation or of improper inducement. So also there might be conduct which was calculated so to abuse or pillory a party to litigation or to subject him to such obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled. In all such situations a court would have to ascertain the precise facts and then, as was said in the Divisional Court, to consider them in the light of all the surrounding circumstances. The surrounding circumstances would include all those relating to the nature of any impending litigation and the stage it had reached." Lord Diplock said (at 308): "To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately – the particular interests of the parties to the case." Later he said (at 313): "In my opinion, a distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the existing law, and public abuse of him for doing so. The former, so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court; the latter is at least a technical contempt, and this whether or not the abuse is likely to have any effect upon the conduct of that particular litigation by the party publicly abused." Lord Simon said (at 318 - 319): "Private pressure to interfere with the due course of justice will only be acceptable within narrow limits. If there is a public interest recognised by law that disputes should without interference be settled according to law in due process of law (whether by trial or by settlement on the basis of the law which would be applied at the trial), in my view it is not only immaterial whether the interference is physical or moral, but also whether the moral interference is, on the one hand, by holding the tribunal or litigant or witness up to public detestation or, on the other, by bringing private pressure to bear (unless such pressure can be justified). … [P]rivate pressure on a litigant (in contradistinction to violence or bribery or public execration) might sometimes be justifiable, while private pressure on the tribunal or witness would never be so. The justification for private pressure on a litigant might be such a common interest that fair, reasonable and moderate personal representations would be appropriate. Finally Lord Cross said (at 326): "To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court; but if the writer states the facts fairly and accurately, and expresses his view in temperate language the fact that the publication may bring pressure – possibly great pressure – to bear on the litigant should not make it a contempt of court." 31 The principles which I extract from this and other cases are as follows. First, it is not per se unlawful to put pressure on a party to discontinue a claim or a defence. If the pressure is fair, reasonable and moderate it will be lawful. Secondly, if the pressure consists of an unlawful act, or a threat to do an unlawful act, such conduct will almost always constitute contempt. Thirdly, a contempt will also arise if pressure is brought about by a lawful act (or the threat of a lawful act) which is neither fair, reasonable nor moderate. For example, such an act may be in contempt if it is designed to punish a litigant. 32 It is now necessary to apply these principles to the facts in this case. Earlier I found that Inghams withdrew the additional work from Timania in order (1) to punish Timania for bringing the Federal Court action and (2) to pressure the applicants financially to withdraw the action. That is more than sufficient to justify the conclusion that the respondents have committed a serious contempt. First there is the intention to punish. Then if that were not enough there was pressure by unlawful means, namely the termination of the contract: whatever view one takes of the contract it was terminated without reasonable notice. And the termination had the clear tendency to pressure the applicants into bringing the action to an end. 33 I would also find a contempt even if I were to accept the respondents' evidence that the contract for additional work was terminated in order to mitigate Inghams' loss in the Federal Court action. The pressure that would be brought to bear by the termination was neither "fair, reasonable nor moderate". It would inevitably place strong economic pressure on the applicants to discontinue their claim. Moreover, I would even find a contempt (confined to Inghams) if Mr Lawrence's instruction to Messrs Willox and Lawler not to use Timania and that Mr Lawler's termination of the contract was a mistake. First, the respondents did not contend that Mr Lawler's conduct should not be attributed to Inghams. Secondly, Inghams adopted Mr Lawler's action and did not seek to rectify the mistake. Remember that here we are concerned with the objective impact of conduct in relation to a party to proceedings who is unaware of the mistake. 34 It is now necessary to decide whether there should be convictions for contempt. The respondents contend (following comments I made during final submissions) that the charges are deficient and that no convictions should be entered. Mr Turner is charged (and I paraphrase) with telephoning other Inghams employees informing them that there will be no additional work for Mr Toner while he is suing Inghams. That is not the real complaint which is made against Mr Turner. The complaint is that he gave instructions, by telephone or otherwise, to employees of Inghams that no extra work should be given to Mr Toner (Timania), while he was suing Inghams. The particulars of the charge are the same as against Inghams, save that it is alleged that Mr Turner's actions were carried out on its behalf. The real complaint is that Inghams refused to give Mr Toner (Timania) additional work because he was suing Inghams. 35 It is trite that a charge for contempt must be distinctly stated: Coward v Stapleton (1953) 90 CLR 573, 579-580; Doyle v The Commonwealth of Australia (1985) 156 CLR 510, 516. Precision is necessary so that the defendant knows the case he has to meet, and can defend himself effectively: Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64, 73. 36 Although the charges in this case were not carefully drawn this did not affect the respondents' ability to defend themselves. The whole of the case on all sides, both in respect of evidence and submissions, was conducted on the basis that the alleged contempt was that Mr Turner procured Inghams to withdraw the additional work from Timania in order to punish it and force it to drop the Federal Court action. Moreover, the respondents did not object to evidence which went beyond the charges as formulated. Nor did they submit that the charges could not amount to a contempt, until I raised the issue during closing submissions. 37 In these circumstances, the applicants contend the respondents were aware of the gist of the charges, and that is all that is required. There is some justification for this submission, but it may not altogether be correct. In this event the applicants seek leave to amend the charges so they accord with the case that was presented and defended at trial. There is no doubt that the particulars of a charge of contempt may be amended: Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245, 257. There is a view that the circumstances in which an amendment will be allowed are narrow, in particular that an amendment will not be allowed to cure a "seriously defective" charge: Carew v Carew Corporation Pty Ltd (unreported, 23 April 1993, Supreme Court of Western Australia, Full Court); Castledine v Boronga Pty Ltd [2000] WASC 215. It is unnecessary in this case to decide whether the court's undoubted power to amend a charge should be confined in any way. Here the amendments should be allowed because they will cause no prejudice. Nor will they revive a "seriously defective" charge. In any event, it is in the interest of justice that faulty drafting which did not affect how the respondents conducted their defence at trial should stand in the way of the court's power to punish a serious contempt. 38 I now turn to the punishment. First I regard it as my duty to protect the applicants from the conduct which has been taken against them. I have in mind in particular that the respondents refused to reinstate the contract though they were on notice that their conduct may be in contempt. The respondents maintained this position throughout the trial. In these circumstances there will be an order that Inghams reinstate the contract for the additional work. To adopt Lord Denning's sentiments in Chapman v Honig [1963] 2 QB 502, 513 "[n]othing else will serve to vindicate the authority of the law … nothing else will empower the judge to say to [in that case a witness]: 'Do not fear. The arm of the law is strong enough to protect you'." It will be necessary to qualify the operation of the mandatory order. There may be legitimate reason to bring the arrangement to an end. No order of the court should prevent this from happening. I propose to deal with this potential by granting Inghams liberty to apply to discharge the order on reasonable notice. In this way Inghams will carry the onus of establishing that it is appropriate to bring its contract with Timania to an end. There will also be an order that Inghams pay the applicants' costs on an indemnity basis. There is no reason why they should be out of pocket on this motion. 39 It is difficult to know what to do with Mr Turner. Having given the matter anxious consideration I have come to the view that he should be fined $5,000. This is by way of punishment for his conduct and not for any personal deterrence because I doubt he will offend again. On the other hand, the fine should deter others. The amount should be paid within fourteen days to the District Registrar. If it is not so paid, the District Registrar will take action to recover the penalty and pass it on to the proper authorities. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 9 June 2004 Counsel for the Applicants: Mr T Angelopoulos Solicitor for the Applicants: Middletons Counsel for the Respondent: Mr C Harrison Solicitor for the Respondent: Freehills Date of Hearing: 20 May 2004 Date of Judgment: 9 June 2004