Australian Building Construction Employees and Builders Labourers Federation & Ors v Honourable Robert Ian Viner who sues as Minister of State for Industrial Relations & Ors [1982] FCA 327

HIS HONOUR: I will adjourn these proceedings until 2.15 on Wdnesday 14 April, and that further proceeding will take the form of a compulsory conference in which the general secretary will be directed to appear. And, Mr. Boyd, I would be grateful if you would convey to the general secretary the commission's concern at this industrial action.

(h) that on 14 April the matter of the dispute again came on before Mr. Justice Alley and Mr. Keast was present. Mr. Shaw represented the Company and the Federation was represented by the appellant Boyd and the General

The proceedings on the 14th April commenced with an inquiry from his Honour Mr. Justice Alley as to whether either of the parties had anything further to add to what had been said during the proceedings on the 8th April. Neither party wished to make any further statements, and the matter was then adjourned

Mr. Justice Alley then asked Mr. Gallagher what the B.L.F. hoped to achieve by the actions against the company. Mr. Gallaagher replied by making a statement to the effect that both he and the B.L.F. had been kicked around by the employers in the building

industry and their backroom committees and that it was

time that the union did some kicking around in the field. Mr. Gallagher made a further statement to the effect that since Mr. Keast was involved on the employers' committees that instigated the deregistration proceedings against the union and the

Mr. Shaw then pointed out to Mr. Gallagher that the company had not Placed any evidence before the Royal Commission or those involved in the deregistration proceedings. Mr...Gallagher did not appear to be

Statement to the effect that on the basis of his knowledge of the employers in the building industry, the company would not get any support from those

(1) After further discussion between those at the conference, Mr. Justice Alley again asked Mz. Gallagher what he expected to achieve by his actions against the company. Mr. Gallagher made a statement to the effect that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the B.L.F. and, further, the payment of fines which had been imposed on members of the B.L.F. with respect to their refusal

Having regard to the observations quoted above from Stapleton's Case (Supra) it is clear that a finding that the appellant Gallagher had been guilty of contempt of Court could be made only in respect of conduct the gist of which was Stated in the particulars of the charges. The gist of the charge against the appellant Gallagher as specified in the charges was that he had procured the stoppages at the site of works of the company or he had brought about the continuation

of those stoppages and that he had stated that the purpose of

the stoppages of work on those sites was because Of Keast being involved in the deregistration proceedings and that he engaged in such conduct in circumstances in which it tended to .and was intended to constitute a threat to persons participating in or supporting the deregistration procesdings pending in the Federal Court of Australia in any way as Specified in particulars under para (i) of the particulars of the charges. It may be said therefore that unless it were proved that the appellant Gallagher had procured the stoppages or had brought about the continuance of the stoppages at the work sites of the company and had stated that those stoppages were brought about or continued because of Keast being involved in the deregistration proceedings with the tendency and intention to constitute a relevant threat, no finding of contempt could be made. Also, even if there were evidence of these matters no finding that the- appellant Gallagher was guilty of a contempt of court could be made unless the learned

Judge had accepted that evidence to the point of satisfaction

To my mind it is clear that. there was adequate evidence that the appellant Gallagher had brought about the continuance of the stoppages. It is clear that on the evening of 5 April he knew that the stoppages had been called at the "Company's building sites and that, referring to them, he had Stated that "they had been imposed by the Federation on

construction work of the builder H.M. Keast & Son Pty. Ltd.

because Mr. Req Keast, an executive of the company was a driving force behind the moves to deregister the Union." He added in that connection, "we are going to repay a few debts; it will be tit for tat from now on." Further, on 14 April at the proceedings before Mr. Justice Alley, in compulsory conference, concerning the dispute which had been notified by Mr. Keast's company in respect of the said stoppages and first heard on 8 April 1982, the appellant Gallagher appeared with the appellant Boyd for the Federation. In those proceedings the appellant Gallagher made statements as set forth above concluding by saying that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for deregistration proceedings against the Federation and further the payment of

fines which had been imposed on members of the Federation with

respect to their refusal to give evidence before the Royal

In my opinion it was open to the learned Judge to find that in making these statements the appellant Gallagher was speaking for himself alone or for himself jointly with the Federation and not merely as the representative of the Federation. Also it was open to the learned Judge to find that the actions which the appellant Gallagher referred to as

"his actions" were the continuing of the stoppages.

The continuation or calling off of the stoppages was the one subject matter of the discussion between Mr. Justice Alley and the appellant Gallagher. When Mr. Justice Alley inquired what the appellant Gallagher expected to achieve by "his actions" the language no doubt reflected an assumption by his Honour that the stoppages, or at least their continuation, were brought about by and were under the control of the 'appellant Gallagher. And in replying quite naturally, in Similar fashion, the appellant Gallagher acknowledged that what the conference was about, namely, the continuing stoppages, were "his actions". There jis no other reasonable interpretation of the exchange that tock place. And there was, in this exchange an asserticn by the appellant Gallagher that the continuation of the stepvages was his action as weil as that of the Federation. Thus in that conference there was an assertion by the appellant Gallagher of personal participation in the continuation of the stoppages, in the

It was contended that the proceedings in compulsory conference were by s.27 of the Conciliation & Arbitration Act 1904 in the nature of without prejudice negotiations or otherwise a privileged occasion in respect of which evidence was not admissible in other proceedings. It is unnecessary to examine this contention further than to observe that if there be any such quality of privilege in the proceedings at the

conference, it would not extend to what may be described as

iniquity committed thereat. Evidence of conduct in such a conference constituting an iniquity, such aS a contempt of court, would be admissible on that issue notwichstanding any

such privilege if there be any. See Gartside v. Outram (1856)

27 L.d. Ch. 113 at p.114; British Steel Corporation v. Granada

Television Ltd (to ba reported in (1981) A.C. 1096) (1980 3

W.L.R. 774 at p.851 and Varawa v. Howard Smith & Co, Ltd.

In his reasons for judgment the learned Judge does not say, in so many words, that he was satisfied beyond reasonable doubt that the appellant Gallagher participated in the continuation of the stoppages of work, but to my mind, it is manifest uvon a natural reading of his words in their context, that he does, clearly enough, express such satisfaction. The learned Judge found that at the conference,

"(a) That since Mr. Reginald Keast was involved on the employers' committees that instigated the deregistration proceedings against the union and the Royal Commission, the company was the first on the union's list.

(b) That on the basis of his knowledge of the employers in the building industry, the

company would not get any support from those employers.

(c) That he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation, and further, the rayment of fines which had been imposed on mambers of the Federation with respect to their refusal

to give evidence before thee Royal Commission." Dealing with the case against the appellants Gallagher, Boyd and the Federation and referring to an

observation of Lord Reid in Attorney-General v. Times

Newspapers Ltd. [1974] A.C. 273 at p.296 that, in order to prevent a trial from being unfair, "comment likely to sffect the minds of witnesses must be stopped ...", the learned Judge said, "The present case deals with intimidatory conduct - not

"I also am satisfied beyond reasonable doubt that the statements by the respondent Gallagher on 14 April, 1982, to which I have already referred, and which were made in the presence of the representative of the Master Builders' Association of Victoria and the company were made by hin partly for the purpose of dissuvading persons from giving evidence on behalf of the applicants in the deregistration proceedings or, if he failed in that purpose, dissuading them from giving evidence unfavourable to the Federation and also partly for the purpose of inducing those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. Mr. Keast gave unchallenged evidence that, 'Mr. Gallagher Made a Statement to the effect that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation'. In my opinion Mr. Gallagher there made it clear that his actions were intended by him to induce the Master Builders' Associations throughout Australia to withdraw from their role as joint applicants in the deregistration proceedings." .

It is to be observed also that the order of the learned Judge

recites that the appellant Gallagher had committed the

contempt of which he was adjudged guilty on 1] May 1982, namely, that between a date on or about 5 April 1982 ana 21 April 1982 he interfered with the course of Justice by conduct

It is suggested that a fine line is involved. But in my view this is not so. At the comrulsory conference -nobody was in any doubt about the subject in dispute. That was whether the stoppages, which everybody knew about, were to be brought to an end or continued. Mr. Justice Alley was urging the discontinuance of the stoppages. On that the appeilant Gallagher was non co-operative. When asked what he expected to achieve by his actions ha was quite direct and to the point in saying that he expected his actions to achiave a withdrawal of support by the Master Builders' Association throughout Australia for the deregistration proceedings. Faw words were used but few were needed. The only action of the appellant Gallagher likely to have this effect was his conduct in continuing the stoppages or continuing to participate in their continuance. It is significant that Mr. Keast was not cross-examined as to what was said at the conference, It would be no surprise to anybody at that conference that the appellant Gallagher should assert his participation in and

indeed control of the continuation of the stoppages.

the appellant Gallagher so participated and of course made the

threats alleged. Accordingly the appeal of the appellant Gallagher against conviction should be dismissed. As to the appellant Boyd, his case is to be

distinguished from that of the appellant Gallagher in that

'there is nothing to suggest that in his appearance before Mr.

Justice Alley he did not act merely in the role of advocate.

He did not claim that he personally had engaged in any actions

or conduct designed to put pressure of any kind upon those

connected with the deregistration proceedings to withdraw them

or support for them. True it is that he was ona of those wh conveyed a message to the building workers at one site that

they were to stop work and explained the objective of th

Federation in that respect. However, in the cases against the other organizers, his Honour did not consider that factor alone to be a contempt. Accordingly there was insufficient evidence to support a finding that the appellant Boyd committed the contempt alleged against him. "His appeal should

be allowed and the conviction against him should be set aside.

invalidity thereof was submitted. That appeal should be

An appellate court interferes with the santence imposed upon a convicted person only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some Salient feature of the evidence. The error may appear in what the

"sentencing judge said in the proceedings or the sentence

itself may be so excessive as to manifest such error. (See

The Queen v. Tait (1979) 46 F.L.R. 386 at p.388. Conipare

Harris v. The Queen (1954) 90 C.L.R. 652, followad by the

Federal Court in Kovac v. The Quean (1977) 15 A.L.R. 637)

The Federation is the creature of the law. It has access to the Conciliation & Arbitration Commission from which it obtains awards imposing obligations upon employers which it May enforce in the Courts of the land. Jt has a monopoly of recruitment of members in its area of. industrial activity. It is a very large and powerful organization of great significance in the community. Its capacity to cause sudden devastating dislocation in building operations without warning gives it enormous bargaining and indeed menacing power. It was this power which its Managing Committee decided to use against H.M. Keast & Sons Pty. Ltd. in bringing to a standstill its building operations at its various sites. The threat was of a continuing stoppage at the Company's sites as the first on the Federation's list of proposed victims because it was thought to be involved in the pending deregistration

proceeuings. Such a ruthless exercise of destructive

industrial power would be objectionable enough in any circumstances but to use it accompanied by threats of more of the sama to frighten persons that they would abandon their approach to a Court to seek legal remedies was, on the part of such an organization, an offence against the community of a 'high order. There could be no question of the fine of $15,000

Also so far aS the penalty against the appellant Gallagher is concerned that penalty of two months imprisonment is not itself so high as to indicate a manifest error. There is one matter however in respect of which it was suggested that the learned Judge wrongly assessed a salient feature. That was that he considered that the appellant Gallagher was in a position himself to bring the stoppages to an end at some time before they were terminated. It does not appear however that under the Union rules the appellant Gallagher was authorised actually to direct the Union members to return to work. But it is perfectly clear that the appellant Gallagher as its General Secretary could at any time have called his executive together to consider termination of the stoppage. He could have exercised his influence in the Union to divert "it from its unlawful, damaging, and threatening course. Executive officers and Union leaders such as the appellant Gallagher are persons of great importance in the economic and industrial life of the community. They wield great influence.

responsibility is to refrain from unlawful conduct and particularly from intimidating actions designed to frighten persons so that they abandon their elementary right to approach the Court in the pursuit of legal remedies. Such conduct strikes at the root of tne administration of justice. Accordingly, in my opinion this is not a case for interferences

(a) the appeal of the appellant Boyd should be allowed

(b) the appeal of the appellant Gallagher should be

_(c) the appeal of the appellant Federation should be