Industrial Relations Commission Industrial Relations Commission of New South Wales Industrial Court of New South Wales Federal Express v Mejias (No. 2) [2005] NSWIRComm 481 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Federal Express (Australia) Pty Ltd PARTIES: RESPONDENT Ric Mejias FILE NUMBER(S): 5240 of 2005 CORAM: Marks J CATCHWORDS: Application for orders for contempt - allegations by applicant for relief in unfair dismissal proceedings before Industrial Relations Commission of New South Wales that he would publish material critical of employer if those proceedings not settled - held that conduct appears to constitute contempt by employee - held appropriate for Industrial Court of New South Wales to refer proceedings to Registrar for initiation of contempt proceedings. Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 r 237 Federal Express v Mejias [2005] NSWIRComm 474 CASES CITED: Harkianakis v Skalkos and ors (1997) 42 NSWLR 22 HEARING DATES: 12/08/2005 DATE OF JUDGMENT: 12/23/2005 APPLICANT Mr M Kimber SC with Mr T Dixon of counsel Solicitor: Mr P Brown LEGAL REPRESENTATIVES: Baker & McKenzie RESPONDENT Mr R Mejias (in person) JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Friday 23 December 2005 Matter No IRC 5240 of 2005 FEDERAL EXPRESS (AUSTRALIA) PTY LTD v RIC MEJIAS (No. 2) Application by Federal Express (Australia) Pty Ltd re allegation of contempt by Ric Mejias in respect of unfair dismissal application IRC1720 of 2005 JUDGMENT ON REFERRAL FOR CONTEMPT [2005] NSWIRComm 481 1 The applicant, Federal Express (Australia) Pty Ltd ("FedEx"), has sought by notice of motion certain orders against the respondent, Ric Mejias, arising out of related proceedings commenced by Mr Mejias against FedEx before the Industrial Relations Commission of New South Wales seeking relief under s 84 of the Industrial Relations Act 1996 ("the Act") ("The Commission proceedings"). The applicant sought two principal kinds of relief. The first was the prohibition of the publication of certain material. Judgment was delivered on 21 December 2005 in favour of FedEx (Federal Express v Mejias [2005] NSWIRComm 474). That judgment sets out the factual background to these proceedings. In that judgment I refer in particular to documentation filed by Mr Mejias in the Commission proceedings, in which he made a number of wide ranging allegations critical of the operation of the FedEx business, identifying a number of persons involved in a variety of activities said to constitute misconduct and threatening to publish that material and other material widely, including publication to a number of current affairs television programs. In an email, which I have referred to in detail in paragraph [6] of my earlier judgment, Mr Mejias said in part that the further "evidence 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". That email made it clear that Mr Mejias was threatening FedEx with exposure of material which he asserted would be extremely damaging to it, with a view to putting pressure on Federal Express to resolve the Commission proceedings in his favour by way of a settlement, including the payment of "compensation". 2 I set out hereunder paragraph [7] of my earlier judgment, which encapsulates the circumstances surrounding and the content of an email forwarded by Mr Mejias dated 13 September 2005: [7] "The applicant asserted, and the respondent did not deny, that a further email which had become evidence in the Commission proceedings was dated 13 September 2005. This email was addressed at the commencement 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 then addressed to the chairman and other officers, although it is not clear whether it was forwarded to the parent company of the applicant or, indeed, the applicant alone. 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 international aviation breaches, customs breaches and assaults and robbery affecting employees of the applicant whilst travelling. There is also a reference to "many missing packages" and the like. There is a threat to disclose the remaining parts of the story and the fact that the respondent looked forward "to questions and actions that facilitate an amicable resolution to outstanding issues"." 3 In addition to seeking orders for the suppression of material, FedEx sought a referral by this Court of the Commission proceedings to the Registrar so that proceedings for contempt might be commenced against Mr Mejias. 4 This application was based on the provisions of rule 237 of the Industrial Relations Commission Rules 1996, which is in the following terms: Rule 237 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. 5 Part 29 of the Commission Rules, in which rule 237 appears, sets out a number of circumstances in which proceedings for contempt may be commenced. Division 1 makes it clear that rule 237 is intended to apply to proceedings before the Industrial Relations Commission of New South Wales, as well as proceedings before the Industrial Court of New South Wales. However, the remaining provisions are confined to proceeding before the Industrial Court of New South Wales. Accordingly, as the allegations made by FedEx are confined to the Commission proceedings, it is appropriate to consider the matter in the context of rule 237. 6 There can be no doubt that it is alleged by FedEx that Mr Mejias is guilty of contempt. This then allows "the Commission" to exercise the discretion vested in it by rule 237 if it is appropriate to do so. 7 During the course of argument, I raised with Mr Kimber SC, counsel for FedEx, whether it would be appropriate for the Court to make an order under rule 237 in circumstances where the allegation of contempt arises out of the conduct of the Commission proceedings. In written submissions, Mr Kimber asserted that rule 237 should be read as enabling the Court to make an order under rule 237, even though the contempt was with respect to proceedings before a member of the Commission sitting as the Industrial Tribunal. Furthermore, Mr Kimber submitted that there could be no suggestion that the Commissioner dealing with the Commission proceedings was better placed to make a decision under rule 237 merely because he had the carriage of the Commission proceedings and had heard all the evidence. Mr Kimber said: "The reality is that the contempt allegations are clear on the face of the materials now before the Court. There is no evidence of any other contention or implication that Commissioner Ritchie "knows things that this Court does not know" or is otherwise better qualified or placed to assess the applicant's allegation of contempt and the persuasiveness or otherwise of its argument in support of the making of an rule 237 order". 8 It is clear that where a litigant conducts himself or herself in a manner which goes beyond the litigation of the issues before a Court or Tribunal with the result that improper pressure is placed upon a party to litigation to settle or otherwise compromise the proceedings, that this will arguably constitute contempt. 9 The relevant principles and authorities are comprehensively referred to in the judgment of Mason P in the New South Wales Court of Appeal in Harkianakis v Skalkos and ors (1997) 42 NSWLR 22. Beazley JA agreed with the reasons of Mason P. Commencing at page 27, Mason P discussed a particular situation where a party had imposed improper pressure on another party to litigation, in circumstances where the publication was not made with intent to deter pending litigation. This is not the situation which arguably applies in the circumstances of these proceedings. Nevertheless, the summary of the law set out by his Honour makes it abundantly clear that where conduct can be said to interfere with the course of justice in a particular case it will constitute contempt. 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. 11 ORDERS 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. AMENDMENTS HISTORY: 14/03/2007 - legal representative's name omitted - Paragraph(s) headnotes DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.