Allen, Francis v Henderson, Thomas Horatio [1983] FCA 229

By summons dated 27 May, 1983, the prosecutor charges the defendant with a failure to comply with an order

of this Court contrary to s.141(4) of the Conciliation and

A member of an organisaticn may apply to the Court under s.141(1) of the Act for an order under s.141 in respect of the organisation. An order under s.1l4]1 may give directions for the performance or observance of any of the rules of an crganisation by any person whe 1s under an obligation to perform or observe those rules (s.141(1G)). A person shall not fail to comply with a direction or order of

the Court under s.141. A penalty of $400.00 is prescribed

te ne eth ern mineaetengel pts nt ppeelan onthe cetain Aebeve wyenenwermwneenitnanen as

The charge made by the prosecutor 1s that on 9 May, 1983, at the offices of the Building Workers' Industrial Union of Australia, Western Australian Branch at 1085

Beaufort Street, Perth, the defendant, being a person who

was on 6 May, 1983 ordered by this Court to perform and observe the rules of the Building Workers' Industrial Union of Australia ("the Union") by treating as null and void the resolution of the committee of management of the Western Australian Branch thereof carried at its meeting on 25

February, 1983, suspending the prosecutor as an organiser of

the Western Australian Branch of the Union, failed to comply

with the said order contrary to s.141(4) of the Act.

On 6 May, 1983, in proceedings in this Court under s.141 (being Nos. W.A. 1, 2 and 3 of 1983) between cthe

prosecutor and Leslie Alan Semple Park as applicants and the

defendant, the Union and others as defendants, Toohey, J.

1. In applications Nos. WA l and WA 2 of 1983 the respondent Thomas Horatio Benderson perform and

observe the rules of the Federal organization by treating as null ané

void the suspension orf the applicants as organizers of the ~~ Western Australian Branch of The

2. In application No. WA 3 of 1983 the respondents Frederick Hagger, Themas Horatio Henderson, P. Sideris, N.G. Parker, J.P. French and K.V. Hall perform and cbserve the rules of the Federal organization by treating as null and vcid the. resolution of the committee of management carried at its meeting on 25 February 1983 suspending and dismissing the applicants as organizers of the Western Australian Branch of the

3. In applications Nos. WA 1 and WA 2 of 1983 the applicants have liberty to apply within 14 days to extend the operation of para.l of the order to the respondent Frederick Hagger.

4. In application Nos. WA 1 and WA 2 of 1983 and in application No. WA 3 of 1983 the applicants have liberty to apply within 14 days to extend the operation of paras. 1 and 2 of this order to the respondent The Building Workers Industrial Union of Australia."

"That at 8.30 am on Monday 9th May 1983 the said Prosecutor attended at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street, Perth aforesaid and informed you that he the said Prosecutor was reporting for work whereupon the following conversation tcok place.

You said, 'You are not starting work. You are to go home. We will be having a meeting of the Committee of Management ef the Western Australian Branch on Thursday, so ring me Friday and we will

The said Prosecutor said, 'There is 4 Court Crder that you were to treat the suspension and sacking as null and void.'

You said, 'I am aware of that but I am not interested. You are tc ga home.'

The said Prosecutor said, 'Are you giving me a direction to go home?'

The prosecutor gave evidence which, in general, accorded with the particulars furnished by him. He said that the defendant was present 1n Court on Friday 6 May, 1983 when Toohey, J. made the orders set out above (see Ord.37 Rule 2(5)(a)). There was no contact between the

parties then or over the weekend. On the following Monday,

9 May, 1983, he spoke to the defendant at the Union cfficses in Perth. The defendant told the prosecutor that he was not starting work and that he was to go home and was to ring on the following Friday to see what was the deczsion of the Management committee meeting. The prosecutor then said that there was a decision passed down on Friday by Justice Toohey

instructing him to treat the suspension as null and void.

The defendant then waved his hands and said "he knew that, he

The prosecutor was accompanied on this occasion by Mr. H.C. Avis who gave a similar version of what was said.

proceedings effectively secure the reinstatement of the

prosecutor as an organiser of the Union. It is the duty of the parties bound by the orders to discover the proper means

of obeying the orders (see Halsbury's Laws of England, 4th Ed. Vol. 9 at p.40). The orders must be complied with

within a reasonable time (see Hillingdon London Borough

Council v. Cutler £1968] 1 Q.B. 124). Compliance must in some way be within the power or capacity of the person directed before he could be held to "fail" to comply (see The Queen v. Kelly; Ex parte Berman (1953) 89 C.L.R. 608 at p.623 per Dixon, C.J.; cf. Ingram v. Ingram (1938) 38 S.R.

407 at p.410; Ganke v. Deputy Commissioner of Taxation (1975) LN.S.W.L.R. 252 at p.257).

These are criminal proceedings. Like proceedings for contempt of court, a failure to comply with a direction or order of the court will only be punished if the failure 1s established beyond reasonable doubt (see Halsburyv's Laws

of England, 4th fd. Vol. 9 at p.40): "Like every other

offence the facts by which (such contempt) 1s made out must be proved by admissable evidence to the satisfaction beyond reasonable doubt of the tribunal. Uncertain inferences from

inexact proofs will not support such a charge" (Consolidated

Press Ltd. v. McRae (1955) 93 C.L.R. 325 at p.333).

It 1s submitted on behalf of the defendant that the evidence adduced by the prosecution shows no more than a

temporary failure to provide work to the prosecutor. In

this connection, reference 1s made to the authorities which establish that, under an ordinary contract of employment, no obligation is imposed upon the employer to provide work. The employer is still, of course, liable to the employee for salary or wages but this 1s not in question here (see Turner v. Sawdon [1901] 2 K.B. 653; Collier v. Sunday Referee

Publishing Company Ltd. [1940] 2 K.B. 647 at p.650; White v.

Australian' and New Zealand Theatres Ltd. (1943) 67 C.L.R.

266; Halsbury's Laws of England, 4th Ed. Vol. 16 at p.356).

The orders made by Toohey, Jd. called for an acknowledgement by the parties, in the form of appropriate conduct, that the prosecutor had been renstated es an organiser. In my opinion, the evidence adduced by the prosecution dces not establish beyond reasonable doubt that the defendant refused to make, in the form of appropriate

conduct, an acknowledgement of the kind required ty the

orders. At best, the evidence 1s equavocal on the peint.

It may be said that since in the conversation which occurred the defendant indicated that work was not available for the prosecutor during that week, an inference should be drawn that the defendant was thereby evincing an intention to avoid the issue by stalling. The reference by the defendant to his not being "interested" may be said to support this. However, the timing is important: the conversation occurred early on the first working day after the orders were made (they were not taken out until after this prosecution was launched). Clearly, a number of officials of the Union was involved and it is perfectably understandable and reasonable that a meeting cf those concerned should be required to be held to discuss the matter. It is also to be expected that, in the ordinary course, it could be some days before the meeting could be

from the conversation relied upon are uncertain. In those circumstances, I cannot be satisfied beyond reasonable dcupt that the defendant has failed to comply with the orders

Pages are a true copy of the reasons for judgment herein of The Honourable

INDUSTRIAL DIVISION No. W.A. 10 of 1983 . BETWEEN FRANCIS ALLEN Prosecutor AND THOMAS HORATIO HENDERSON Defendant ORDER

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY

BETWEEN FRANCIS ALLEN ProsecutorAND THOMAS HORATIO HENDERSON Defendant

heard together. By his summons in this matter dated 27

May, 1983, thé prosecutor makes the following charge against

"That on the 9th May 1983 at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street Perth in the said State THOMAS HORATIO HENDERSON

of 24 Martin Avenue Rivervale in the said State being a person who was on the 6th May 1983 ordered by the Federal Court of Australia to perform and observe the Rules of the Building Workers' Industrial Union of Australia by treating as null and void the resolution of the Committee of Management of the Western Australian Branch thereof carried on at its meeting on 25th February 1983 dismissing the said Francis Allen as Organiser of the Western Australian Branch of the Bualding Workers' Industrial Union of Australia failed to comply with the said Order con- trary to sub-Section 4 of Section 141 of the Conciliation and Arbitration Act I904".

Particulars of the charge are the same as those given in the previous matter between the same parties, No. W.A. 9 of 1983. However, there is one difference between the

charges made. In the earlier proceeding, it 1s alleged that

fate ma etch mish tena pena ine ahi citnenntenstat Bene 2 x ee ' Ls) ' a

the purported resolution suspended the prosecutor as an

organiser whereas, in this proceeding, the allegation is

that the resolution purported to dismiss him from that office. Nothing turns on that distinction for present purposes. For

the reasons given in the earlier matter, I propose to dismiss

IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY } ) )

BETWEEN FRANCIS ALLEN Prosecutor AND THOMAS HORATIO HENDERSON Defendant ORDER Judge making order: Beaumont, J. Date order made: 2 September, 1983. Where made: Sydney.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY

heard together. By his summons in this matter dated 27

May, 1983, the prosecutor makes the following charge against

"That on the 9th May 1983 at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street Perth in the said State THOMAS HORATIO HENDERSON of 24 Martin Avenue Rivervale in the said State being a person who was on the 6th May 1983 ordered by the Federal Court of Australia to perform and observe the Rules of the Building Workers' Industrial Union of Australia by treating as null and void the suspension of the said Francis Allen as an Organiser of the Western Australian Branch of the Building Workers' Industrial Union of Australia on the 2nd February, 1983 failed to comply with the said Order contrary to sub-Section 4 of Section 141 of the Conciliation and Arbitration Act 1904."

, ] -2- , Particulars of the charge are the same as those given

in the previous matter between the same parties, No. W.A. 9 of 1983. However, there is one difference between the charges made. In the earlier proceeding, 1t 1s alleged that the purported resolution suspended the prosecutor as an organiser whereasin this proceeding, the allegation

makes no reference to the resolution but refers simply to

the purported suspension. Nothing turns on that distinction for present purposes. For the reasons given in the earlier