Industrial Court of New South Wales CITATION: Industrial Registrar v Mejias (No 2) [2007] NSWIRComm 253 APPLICANT Industrial Registrar PARTIES: RESPONDENT Ric Mejias FILE NUMBER(S): IRC 2972 of 2006 CORAM: Wright J President; Boland J; Staff J CATCHWORDS: Contempt - Penalty - Costs - Offence objectively serious - Importance of deterrence - Significant mitigating factors - Debilitating mental state at time of offence - Remorse - Apology to Court - Indebtedness due to legal costs - No penalty imposed - Application of s 10 of Crime (Sentencing Procedure) Act 1999 - No order as to costs Crimes (Sentencing Procedure) Act 1999 ss 10(1)(a), 10, 3A, and 21A LEGISLATION CITED: Industrial Relations Act 1996 s 180 Security Industry Act 1997 Auburn Council v Czopak (No 4) (2005) 142 LGERA 380 Clarkson v The Mandarin Club Ltd and Others (1998) 90 FCR 354 Commissioner for Fair Trading v Partridge [2006] NSWSC 478 Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126 Federal Express v Mejias (No. 2) [2005] NSWIRComm 481 Federal Express v Mejias [2005] NSWIRComm 474 Harkianakis v Skalos and Ors (No 2) (Full Bench, matter no 40514 of 1996, unreported, 15 October 1997, NSWCA) CASES CITED: In the matter of Daniel James Ezold [2002] NSWSC 574 Industrial Registrar (NSW) v Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 Industrial Registrar v Mejias [2007] NSWIRComm 145 Janvier Jando (2001) 125 ACrimR 473 Owners Strata Plan 37762 v Pham and Ors (No 2) [2007] NSWLEC 306 Principal Registrar of Supreme Court (NSW) v Tran (2006) 166 ACrimR 393 Principal Registrar of Supreme Court of NSW v Drollet [2002] NSWSC 490 Registrar, Supreme Court of South Australia v Zappia (No 2) (2003) 86 SASR 410 Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 Wood v Staunton (No 5) (1996) 86 ACrimR 183 HEARING DATES: 2 October 2007 DATE OF JUDGMENT: 9 October 2007 APPLICANT Ms R A Pepper of counsel Solicitor: Dr J Quilter LEGAL REPRESENTATIVES: Crown Solicitors Office RESPONDENT Mr M Gibian of counsel JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President BOLAND J STAFF J Tuesday 9 October 2007 Matter No IRC 2972 of 2006 INDUSTRIAL REGISTRAR v RIC MEJIAS Application for orders pursuant to section 180 of the Industrial Relations Act 1996 in relation to Matter No IRC 1720 of 2005 JUDGMENT OF THE COURT [2007] NSWIRComm 253 1 In Industrial Registrar v Mejias [2007] NSWIRComm 145 the Full Bench made 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. 2 The nature of the contempt was that the conduct of Mr Mejias in composing and sending the email tended to interfere with the due administration of justice in its application to an unfair dismissal proceeding then before the Industrial Relations Commission, by way of a threat of detriment to his former employer, Federal Express (Australia) Pty Ltd, so as to put improper pressure upon Federal Express to settle the proceeding. 3 On 2 October 2007, the matter came before the Full Bench to deal with the issues of penalty and costs. For the respondent, counsel read without objection the affidavit of Dr Ian Burman, a psychiatrist, who examined Mr Mejias on 2 February 2007. Dr Burman concluded that the respondent suffered from a psychiatric disorder ("Adjustment Disorder") with mixed anxiety and depression in the period leading up to and at the time he committed the contempt. Dr Burman considered that this disorder must have had a severe effect on the respondent's judgment at the time. 4 Mr Mejias sought, without objection, to make a statement to the Court. In his unsworn statement the respondent said he was sorry for his actions and had apologised to Federal Express. He did not believe his actions would interfere with the unfair dismissal proceeding and expressed his sincere apologies to the Court. Mr Mejias also said his relationships had suffered, his wife had suffered a miscarriage, he had experienced sleep deprivation, legal costs awarded against him arising from proceedings in Federal Express v Mejias [2005] NSWIRComm 474 and Federal Express v Mejias (No. 2) [2005] NSWIRComm 481 were of the order of $39,000 that he could not pay, he had been served with a bankruptcy notice in respect of his legal costs and he had almost lost his home. The respondent indicated he was working as a licensed security agent and was concerned that a conviction might jeopardise his licence. Mr Mejias has no previous convictions and requested the Full Bench to consider the application of s 10 of the Crimes (Sentencing Procedure) Act 1999. Respondent's submissions 5 Mr M Gibian, counsel for Mr Mejias, submitted there were a number of considerations that the Full Bench would take into account in determining the appropriate penalty for the contempt found: (a) There is no suggestion of intentional defiance of the authority of the court. The charge that has been found to have been established alleges only that the conduct of the respondent had a tendency to interfere with the administration of justice and not intentional interference in the administration of justice. This is to be distinguished from contumacious contempt involving intentional behaviour that has been shown to have been aimed at the integrity of the courts and designed to degrade the administration of justice: Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 315. (b) Federal Express was not deterred from defending the unfair dismissal proceedings by receipt of the e-mail of 13 September 2005 and no actual interference in the administration of justice in fact occurred as a result of the sending of the e-mail: Crimes (Sentencing Procedure) Act 1999, section 21A(3)(a). Federal Express responded to receipt of the e-mail of 13 September 2005 by instituting separate proceedings seeking non-publication orders and a direction that proceedings for contempt be commenced. Federal Express robustly and successfully defended the proceedings. (c) The respondent admitted the conduct alleged against him in Charge A of the application and has never attempted to deny the conduct involved in composing and sending the e-mail of 13 September 2005. The respondent facilitated the efficient hearing and determination of the proceedings by putting on evidence in advance of the hearing fully disclosing the circumstances surrounding the sending of the e-mail of 13 September 2005: Crimes (Sentencing Procedure) Act 1999, section 21A(3)(l). (d) In advance of the hearing of the application, the respondent unreservedly apologised to the court and expressed his sincere regret and contrition for the manner in which he approached Federal Express including by composing and sending the e-mail of 13 September 2005: Crimes (Sentencing Procedure) Act 1999, section 21A(3)(i). The respondent recognised prior to the proceedings that the manner in which he approached Federal Express was ill-advised and he should not have done it. (e) There are strong extenuating circumstances attaching to the conduct of the applicant in the period following the termination of his employment with Federal Express in April 2005 relating to the respondent's state of mind. After consultation with the respondent, Dr Burman diagnosed the respondent as having been suffering from Adjustment Disorder with mixed anxiety and depression of considerable severity. Dr Burman's opinion is that the respondent's judgement was severely impaired in the period following April 2005 as a result of the severity of his psychiatric illness, anxiety and depression. (f) The respondent has already been subjected to a very considerable penalty as result of his conduct in composing and sending the e-mail of 13 September 2005. The sending of the e-mail of 13 September 2005 prompted Federal Express to instituting the proceedings before Marks J seeking non-publication orders and a direction to commence proceedings for contempt. The respondent was ordered to pay the costs of those proceedings which were subsequently assessed in the amount of $39,000. (g) The respondent has given evidence that the loss of his employment with Federal Express, the unfair dismissal proceedings and the costs orders made against him have had a devastating impact upon him financially and emotionally. He has fallen substantially behind on his mortgage payments and been forced to rely upon his family and fiancé (now his wife) for financial support. It has been a most distressing and difficult experience for him. (h) The respondent relies upon the business he has set up since the termination of his employment by Federal Express in order to support himself financially. The business involves website development, security and investigations work. The conduct of the business requires the respondent to hold licences under the Security Industry Act 1997. The recording of a conviction for an offence under s 180 of the Act has the potential to impact upon the holding of these licences. (i) There is nothing to suggest that the respondent is not otherwise a person of good character and that the conduct alleged in Charge A of the application was out of character and produced by the very particular circumstances in which the respondent found himself during the middle of 2005; Crimes (Sentencing Procedure) Act 1999, s 21A(3)(e) and (f). There is no reason to believe that there is any risk that the respondent would contemplate re-offending: Crimes (Sentencing Procedure) Act 1999, s 21A(3)(g). 6 Counsel for Mr Mejias also indicated that the respondent was prepared to give an undertaking to the Court that he would not engage in any correspondence or communication with Federal Express or any employee of Federal Express in connection with legal proceedings other than through any legal representatives who have filed a Notice of Appearance in proceedings. It was noted also that the respondent remained subject to the non-publication orders made by Marks J in Federal Express v Mejias at [16]. 7 It was submitted for the respondent that appropriate deterrence and denunciation of the conduct of Mr Mejias was achieved by way of the order that the respondent was guilty of the contempt, acceptance of the apology and the undertaking proffered by the respondent noting the continuing operation of the non-publication orders. In light of the circumstances referred to in [5] above, counsel for the respondent submitted that Mr Mejias should be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 without recording a conviction or, in the alternative, if the Full Bench was of the opinion that a conviction must be recorded, a small fine would be a sufficient penalty. Applicant's submissions 8 The applicant's case in respect of penalty was based on the matters to consider when sentencing a contemnor identified by Dunford J in Wood v Staunton (No 5) (1996) 86 ACrimR 183 at 185 and subsequently applied in other cases including Principal Registrar of the Supreme Court of NSW v Jando (2001) 125 ACrimR 473 at 478 [17] per Studdert J; Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126 at [34] per Lloyd J; Commissioner for Fair Trading v Partridge [2006] NSWSC 478 at [22]; Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 at [63]; Principal Registrar of Supreme Court (NSW) v Tran (2006) 166 ACrimR 393 at [34]; Registrar, Supreme Court (SA) v Zappia (No 2) (2003) 86 SASR 410 at [45]; In the matter of Daniel James Ezold [2002] NSWSC 574 at [14]; Principal Registrar of Supreme Court of NSW v Drollet [2002] NSWSC 490 at [17]; Auburn Council v Czopak (No 4) (2005) 142 LGERA 380 at [16]; Trad v Pickles Auction Pty Ltd [2006] NSWSC 1177 at [8] and Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 at [20]. The matters are as follows: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt. It was also noted by the applicant that the provisions of the Crimes (Sentencing Procedure) Act also apply to the sentencing of persons convicted of contempt, in particular s 3A and s 21A. 9 In applying those factors identified in Wood v Staunton (No 5) and also the relevant provisions of the Crimes (Sentencing Procedure) Act, Ms R A Pepper, counsel for the applicant, submitted in particular: · the contempt was objectively serious, · the contemnor's conduct could be described as wilful, · the reason for the contempt was to gain a direct advantage by the contemnor. That is to say, the contemnor, was motivated by his continuing resentment over his dismissal to place pressure on Federal Express to settle the unfair dismissal proceeding to his advantage. Moreover, this motivation occurred in the context of the contemnor who was willing to abuse a position of trust or authority in relation to Federal Express by reason of his employment there as a Senior Security Specialist, · the contemnor, while not acknowledging that his conduct was capable of constituting contempt, had offered an apology and expressed contrition, · there was no evidence before the Court that the contemnor had any antecedents or that his character, up to the conduct giving rise to the contempt, was anything other than good, · it is unlikely that the contemnor would find himself in these circumstances again. This was particularly so when regard was had to the mental state of the contemnor at the relevant time, which impacted upon his ability to assess the gravity of his conduct and the consequences his actions would have on him. 10 Nevertheless, in relation to the last point, it was submitted that the general deterrence and denunciation of the contempt were of greatest importance. In the present case, it was submitted, the general deterrence extended to ensuring that the administration of justice was not to be interfered with insofar as litigants were to be unfettered in their conduct of proceedings. The contemnor 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 earlier. 11 In identifying penalties imposed in other cases of contempt Ms Pepper referred to Harkianakis v Skalos (No 2) (40514 of 1996, unreported, 15 October 1997, NSWCA) where the court imposed a fine on the contemnors ($2,000 for the first opponent and $10,000 for the second opponent with no order as to costs). In Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354 the Court held that the contemnor was sufficiently penalised by an appropriate costs order (that is, that it bear its own costs), and in Industrial Registrar v The Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 and 409 the Court dismissed the proceedings under s 10 of the Crimes (Sentencing Procedure) Act. 12 On the question of costs the applicant indicated that it estimated its costs would be in excess of $20,000. However, in what we regard as a most considerate and appropriate concession the applicant said it would be content with an order for costs of $10,000. Consideration 13 The offence was objectively serious, albeit not amounting to contumacious contempt. It involved the respondent placing improper pressure on his former employer to settle unfair dismissal proceedings by sending a communication threatening detriment to the former employer if it did not settle, thereby tending to interfere with the due administration of justice. The nature and quality of such an offence, absent significant mitigating factors, would normally attract a substantial penalty to mark the Court's strong disapproval and to deter others. 14 There are, in this case, very significant mitigating factors. We accept the evidence as to the respondent's mental state at the time of the offence and the debilitating effect it had on his capacity to make rational judgments about the position in which he found himself. We also accept the respondent's apology to the Court, which we regard as having been genuinely offered. The respondent is sincerely remorseful. He was obviously distressed in making his statement to the Court and it is apparent he now realises the enormity of the consequences of his mistake, which includes the impact on him and his family, emotionally and financially. 15 There is nothing to suggest the respondent is other than a person of good character and it would appear that the respondent's conduct in committing the contempt was out of character. We consider it is most unlikely he would re-offend. The respondent has no previous convictions. 16 Because of his conduct since the termination of his employment, and which ultimately led to him being found guilty of contempt, the respondent finds himself in difficult financial circumstances. He has accumulated a debt of the order of $39,000 for the legal costs of Federal Express. He has fallen substantially behind in his mortgage payments and been forced to rely upon his family for financial support. He has been served with a bankruptcy notice in relation to the debt. 17 In all of the circumstances, justice would not be served by this Court inflicting punishment on Mr Mejias. He has managed to cause himself sufficient misery. We consider the circumstances before the Court manifestly demonstrate that the requirement of deterrence has been adequately satisfied. Moreover, whilst it is not clear whether any conviction recorded against him would disqualify him from holding a licence under the Security Industry Act and relevant Regulation, we do not see any purpose to be served in placing the respondent's livelihood in jeopardy. Accordingly, we propose to order that the charge against him be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act. In taking this course we note that the respondent is subject to the continuing operation of non-publication orders. We consider it is appropriate to accept a written undertaking to the Court that the respondent will not engage in any correspondence or communication with Federal Express or any employee of Federal Express in connection with proceedings within the jurisdiction of the Industrial Relations Commission of New South Wales other than through any legal representatives who have filed a Notice of Appearance in the proceedings. 18 We have considered the question of costs. The applicant's concession on costs was a commendable gesture but we have decided, in the particular circumstances of this case, that with the respondent already indebted to the extent of $39,000 in legal costs that he is unable to pay, in the exercise of our discretion we should make no order as to costs. Orders 19 The Full Bench makes the following orders: (1) Charge A as set out in the annexure to the applicant's application in this matter for orders pursuant to s 180 of the Industrial Relations Act 1996 is dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. (2) The respondent shall file with the Registrar within 14 days of the date of this judgment a written undertaking to the Court that, until further order, the respondent will not engage in any correspondence or communication with Federal Express (Australia) Pty Ltd or any employee of that corporation in connection with proceedings within the jurisdiction of the Industrial Relations Commission of New South Wales other than through any legal representatives who have filed a Notice of Appearance in the proceedings. (3) No order as to costs. _____________________ 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.