Gallagher, Norman Leslie v Durack, Peter [1982] FCA 280

Federal Court of Australia|1982-11-05|Before: Jenkinson JJ, Northrop J, Fitzgerald J

Contempt of Court - Appeal against conviction and sentence - -

Tendency of statement to destroy public confidence in the

integrity of the court - Whether correct meaning ascribed by primary Judge - Whether improper inference drawn from accused's failure to give evidence - Penalty of imprisonment - Whether

accused's assertion that money from "benefactors" would be used

NORMAN LESLIE GALLAGHER v. THE HONOURABLE PETER DURACK

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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

JUDGES MAKING ORDER: Bowen C.J., Fitzgerald and Jenkinson JJ.

The stay of execution ordered by Mr. Justice Northrop on 5 November 1982 be lifted.

The direction that the warrant for the apprehension and committal of Norman Leslie Gallagher should lie in the Registry shall cease to have effect.

Norman Leslie Gallagher pay to the Attorney-General his costs of the appeal.

The orders specified in paragraphs 2 and 3 of this order shall take effect at 5 p.m. on Friday,

} ) VICTORIA DISTRICT REGISTRY ) No. V43 of 1982. } )

\ ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NORMAN LESLIE GALLAGHER Appellant AND: THE HONOURABLE PETER DURACK Respondent CORAM : Bowen C.J., Fitzgerald and Jenkinson JJ.

BOWEN C.d. and FITZGERALD J. Mr. Norman Leslie Gallagher has

appealed to this Court against a decision of Northrop J. who, on

18 October 1982, adjudged Mr. Gallagher guilty of contempt of

this Court and, on 1 November 1982, sentenced him to three months

imprisonment. Mr. Gallagher is the Federal Secretary of the

Australian Building Construction Employees' and Builders

Labourers' Federation ("the Federation"), an organisation of employees registered under the Conciliation and Arbitration Act 1904.

It is a matter of public record that the Commonwealth Government appointed a Royal Commission to inquire into aspects of the conduct of the Federation its members and officers

including Mr. Gallagher and that, on 25 September 1981 the then

Commonwealth Minister of State for Industrial Relations commenced

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proceedings in this Court for an Order directing that the Federation's registration be cancelled pursuant to s.143 of that Act. -

On 1 October 1981 the Federation filed in the Federal

Court a notice of motion seeking orders that the Commonwealth the State of Victoria and Mr. Winneke should be restrained from proceeding with the inquiry. The motion, which came on before Northrop J. was supported on the basis that its continuance with attendant publicity would interfere with the fair hearing of the

deregistration proceedings and would constitute a contempt of

court. Northrop J. dismissed the motion. An appeal was brought to the Fuil Court which on 27 October 1981 allowed the appeal and ordered that Mr. Winneke be restrained from conducting the appeal in public. An appeal was heard by the High Court on 1 and 2 December 1981. On 11 May 1982 the High Court gave judgment reversing the decision of the Full Court.

Not long after the motion to restrain the Commission was before the Full Court proceedings for contempt were brought by the Federation against two newspapers. Northrop J. heard the

matter on 3 and 4 December 1981. He dismissed the proceedings.

Australia made certain statements during the course of an

inspection of the Loy Yang Power Station project which was in the

course of construction in the La Trobe Valley in Victoria. The

Federation sought an order, inter alia, that the Prime Minister

be punished for contempt in connection with the deregistration

proceedings in respect of the statements which he made. That

application was dismissed by Northrop J. on 6 April 1982.

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Further events between 5 April and 21 April 1982 led to

further contempt charges, this time brought by the then

Commonwealth Minister of State for Industrial Relations against

the Federation, Mr. Gallagher and another official of the Federation. The hearing of those charges by Keely J. concluded on 3 May 1982. On 11 May 1982 his Honour adjudged that all three

charged were guilty of contempt of court. On 18 May 1982 he

imposed penalties including a penalty on Mr. Gallagher of two months' imprisonment. A stay was granted pending appeal.

On the same day, 18 May 1982, a substantial number of workers marched off building construction sites in Melbourne, Sydney, the Gold Coast and Perth. In Melbourne, a substantial number of workers marched to the office of the Master Builders' Association of Victoria and a number attempted to break a police line preventing unauthorised entry into those offices.

On 21 July 1982, a Full Court of this Court unanimously dismissed the appeal by the Federation. On the same day, the Full Court, by a majority (Evatt and Deane JJ., Smithers J.

dissenting), allowed the appeals by Mr. Gallagher and the other official of the Federation. Keely J's. finding that Mr. Gallagher was guilty of contempt of court was based upon a conclusion that Mr. Gallagher had attempted to influence certain of the applicants for deregistration to discontinue and/or to dissuade certain witnesses from giving evidence unfavourable to the Federation in the deregistration proceedings. The majority

of the Full Court did not hold that Mr. Gallagher had not

committed contempt. They held no more than that he was not

sufficiently clearly charged with the conduct which had been held by Keely J. to constitute contempt. As they themselves said, the point, in the circumstances, might "be a technical one with little to recommend it insofar as the general merits are concerned". However, they considered that a plain and distinct statement of the charge was a procedural safeguard which the law

required to be observed in such proceedings. In the result, Mr.

j Gallagher was acquitted. Following the judgment of the Full court a number of

journalists and reporters from newspapers and the electronic media, together with television cameramen and other persons totalling in all about twenty, assembled outside the office of the Federation at 11 Lygon Street, Carlton. They were seeking an interview with Mr. Gallagher in respect of the judgment of the Full Court. At about 1:00 p.m. on 21 July 1982, about three hours after the judgment of the Full Court was delivered, Mr. Gallagher, accompanied by other men, came out of the office of the Federation and on to the footpath in Lygon Street outside the office. Mr. Gallagher held a bundle of documents comprising copies of a resolution passed by the Federal Management Committee of the Federation which he later distributed.

The resolution was set out on a document containing the letterhead of the Federation and was as follows:-

"RESOLUTION OF FEDERAL MANAGEMENT COMMITTEE - 21ST JULY, i982.

The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Sam SISSIES BE AREF Te TNL ene TR ie PE A a, Be Se ai kee OD

Today 1s our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.

As to the fine imposed on the Federation, we maintain

our stand that Criminal Courts should not interfere in industrial disputes. This is a cardinal rule of the

union movement. We cannot justify the uSe of our members' funds for the payment of such fines. However,

as previously announced, we have launched a _ public appeal to raise funds to assist the Federation this

time. We are able to say that we have received a number of substantial donations to that appeal fund, the total of which exceeds $15,000.

Mr. Gallagher consented to be interviewed and to answer

questions. The interview was recorded on video tape. In

addition, at least one journalist took notes of what was said.

The interview came to an end and Mr. Gallagher distributed copies

of the Federation's resolution. A number of those present left, but at the request of others Mr. Gallagher consented to answer further questions, at least a number of which were substantially

similar to those previously asked. There is no record of all of

The questions asked and the answers given in the initial

interview are set out as follows in the judgment of Northrop J.:-

"Reporter: "Mr. Gallagher, how do you feel about getting acquitted by the Courts?' Gallagher: "I think it's a great victory for the . members of the Federation'. Reporter: 'Do you feel personally happy about it?' .

'No, but I think you have all got an idea who they are'.

'No, I don't think he'd have enough money....He's going bad!'

against companies that are involved in the deregistration?'

'Do you regret what you did in the first Place in imposing those bans?'

The questions asked, or in some cases, the substance of

Federation's resolution are also set out in the terms in which

'Mr. Gallagher, what is your reaction (or response) to the Court's decision?'

'I'm very happy to the rank and file of the union who has shown such fine support

for the officials of the union and I believe that by their actions in demonstrating in walking off jobs...I believe that that has been the main reason for the court changing its mind'.

'Do you intend to pay the fine that's still outstanding?'

'The union does not intend to pay the fines out of its own funds. We've set up a public appeal in which we've already

received over $15,000 and the fines will be paid out of that fund. I want to stress once again it will not come out of union funds nor will any union money be used to pay it'.

'Have you said who actually contributed that money?'

'No, but I think you know who would contribute to such a fund'.

'Employers who don't want further industrial reaction perhaps'.

'Well, I don't think any employer in this industry wants to have a fight with this union at the present time. There's too many got problems with high interest

rates, liquidity problems and there's no doubt that they want an easy way out'.

'The court has made it clear that the union itself should pay the fines out of

its own funds. Do you think this move you're making will jeopardise the...that there could be further action against you because of this?'

'No, what we've said is that, we will be using the money out of the public appeal

'The Federal committee of management will consider that later on. It'll be a few

(Question as to how the union would face deregistration).

'It's looking sicker and sicker every day...-it's looking more sicker than

Malcolm Fraser's chances in the next Federal election. Peacock's gone,

Viner's gone, and I'm still here. The message 1s getting back to Macphee, that

to continue deregistration will only leave major problems in the industry they

Four big major contractors are pulling out of deregistration. No doubt people

criminal charges as a result of the Royal Commission) .

"I don't want to discuss it. It'll fall on its face just like this has'.

(Question as to how the membership had reacted to the Federal court's decision).

Gallagher: 'A lot of jobs have gone home in protest over the fine. Dozens and dozens have

Gallagher: 'I believe you've still got a long way to go before I say you've got good manners

but you are improving...I have seen signs of it today'."

Commonwealth gave notice that he would move the Court that Mr.

Gallagher be punished for the contempt of court described in the

statement of charge filed with the Court. The statement of

charge, as amended pursuant to leave granted, was as follows:-

"1, The Respondent, Norman Leslie Gallagher, is charged

with contempt of the Federal Court of Australia in that he on 21 July 1982 outside 11 Lygon Street,

Carlton, after his appeal against his conviction and sentence to 2 months' imprisonment by the Federal Court of Australia had been allowed by a Full Court of the Federal Court of Australia on that day, spoke and published to a number of television reporters, camera operators, journalists

and other persons the words attributed to him in the following passages, namely:-

Reporter: Mr. Gallagher, how do you feel about getting acquitted by the Courts?

Gallagher: I think its a great victory for the members of the Federation (meaning

thereby the Australian Building Construction Employees and Builders

Gallagher: Well put it this way I had no doubt that the membership would defend the officials of this union. They

showed their...their position when the sentence was announced, that a

lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if

there was a dispute with the union that a lot of them'd go out backwards.

Reporter: Mr. Gallagher, what is your reaction (or response) to the Court's decision?

of the union who has shown such fine Support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs...I believe that that has

been the main reason for the court changing its mind.

The said words being intended by him to, or having the tendency to, attribute improper motives to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, consclentiousness and fitness for office, and to cause a lowering of confidence and respect

on the part of the public and litigants in it and them, and thereby to scandalise the Court.

The said Respondent is further charged with contempt of the Federal Court of Australia in that

"in speaking and publishing the words attributed to : him in the passages set out in the first charge, he

did so knowing intending or believing that they would be republished to members of the public by

means of television, and was thereby a party to the republication of the said words:

'I'm very happy to the rank and file of the union who has shown such fine support for the

officials of the union and I believe that by their actions in demonstrating in walking off

jobs...I believe that that has been the main reason for the court changing its mind.'

which occurred by means of their being televised from television station ABV-2 on 21 July 1982, such .

words being intended by him to, or having the tendency to, attribute improper motives to the

Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality,

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courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect

on the part of the public and litigants in it and them, and thereby to scandalise the Court.

The said Respondent is further charged with contempt of the Federal Court of Australia in that in speaking and publishing the words set out in the first charge, he did so knowing intending or believing that they would be republished to members of the public in a newspaper, and was thereby a party to the republication of the said words by means of a summary thereof which occurred when the Passage set out hereunder was published in the issue of 'The Age' newspaper of 22 July 1982, such words being intended by him to, or having the tendency to, attribute improper motives to the court and Judges who comprised it, to excite - misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.

; 'It (meaning the allowing of the said appeal) was a great victory for members of the Union (meaning thereby the Australian Building Construction Employees' and Builders Labourers' Federation).

They showed willingness to demonstrate and walk off jobs when the sentence was announced. This is the main reason for the Court's change of mind. Employers don't want a fight with the union at this stage. With interest rates as high as they are, no one can afford a big dispute'.

The said Respondent is further charged with contempt of the Federal Court of Australia in that

he on the occasion referred to in the first charge distributed to those persons present a document (the resolution of the Federal Committee of Management of the Federation), the words thereof being intended by him to, or having the tendenc

Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scendalise the Court, and also that

in so doing, he intended or believed that, the contents of the said document would be republished

to members of the public in newspapers, or by television, or believed that it was likely that they would be so republished". No charge was brought against the Australian Broadcasting Commission or the publisher of the 'Age' newspaper.

Northrop J. held that the first two answers made by Mr.

Gallagher which are set out in the first charge did not

constitute contempt. He held further that, while Mr. Gallagher

gave his answers with the intention and knowledge that they or some of them would be published in newspapers or on radio or television, he was not guilty of separate contempts in terms of

charges 2 and 3. Further, he held that while Mr. Gallagher

Gistributed copies of the Federation's resolution in his capacity

as its Federal Secretary, it was not appropriate in all the

circumstances of the case to hold that a separate contempt was

committed in terms of charge 4. However, he found that Mr.

Gallagher's final answer set out in the first charge, which had been given after he had distributed the Federation's resolution,

did constitute a contempt which should be punished.

His Honour's judgment was subjected on this appeal to

close examination. Since the liberty of a subject is in

question, we will strive to attend to each criticism.

Nonetheless, it seems apt before doing so to record the issue as

it presented itself to the learned primary Judge: He said:-

"In the present case the crucial question is whether in giving the answers set out in paragraph 1 of the statement of charge, Gallagher, either expressly or by implication, asserted that the Federation by the action of its members outside Court, had the power to influence and in fact influenced the Full Court of the Federal

Court of Australia to set aside the term of imprisonment imposed upon Gallagher".

His Honour then went on to express the opinion that the questions

and answers which gave rise to the charges of contempt had to be considered in the light of the considerable publicity which had occurred before and which it must have been anticipated would follow from the Full Court's judgment, some three hours

previously. Further, he pointed out that Mr. Gallagher knew of

the Federation's resolution, and that the first two paragraphs of that resolution necessarily referred to Mr. Gallagher. Elsewhere he noted, in favour of Mr. Gallagher, that, in construing what Mr. Gallagher said, "the need for full, free and frank public comment on judicial decisions" was to be borne in mind and that the criminal onus of proof was applicable.

It is Mr. Gallagher's own case that the answer which has been held to constitute contempt, and the question to which it was a response, were substantially repetitious of two earlier questions and answers, and that by the answers Mr. Gallagher was explaining and amplifying the first two paragraphs of the Federation's resolution. The respective extracts are as follows :-

The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand,

alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage

(b) Questions and answers before distribution of Federation resolution:

Reporter: 'Mr. Gallagher, how do you feel about getting acquitted by the Courts?'

\ Gallagher: 'I think it's a great victory for the members of the Federation'. Reporter: "Do you feel personally happy about it?' Gallagher: 'Well put it this way I had no doubt that the membership would defend the officials of this union. They showed

their....their position when the sentence was announced, that a lot of employers in

this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union then a

Reporter: 'Mr. Gallagher, what is your reaction (or response) to the Court's decision?'

Gallagher: 'I'm very happy to the rank and file of the union who has shown such fine support

. for the officials of the union and I believe that by their actions in demonstrating in walking off jobs....I believe that that has been the main

Federation's resolution. In rejecting the fourth charge his

Honour said that, insofar as the contents of the resolution

constituted a contempt, Mr. Gallagher may have committed a Y

contempt in publishing the resolution by distributing it to those

present at the interview. He did not persevere with further : consideration of that possibility. He deemed it inappropriate to .

do so because the resolution had otherwise been brought to

account. The learned primary Judge had earlier stated that,

although the relevant part of the resolution might have been

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"mere hyperbole", it "set the tone" for the answers given by Mr. Gallagher. Thus, the Federation's resolution was brought to account by his Honour, not as a separate contempt, but as "part of the surrounding circumstances" of the answer which was held to amount to a contempt.

The answers given by Mr. Gallagher at the commencement of the initial interview, i.e. the first two answers contained in the first charge, and the first part of the answer given by Mr.

Gallagher after distribution of the Federation resolution, which

is the remaining answer upon which the first charge is based,

were all accepted by his Honour as no more than expressions of

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Judgment (529 paragraphs)

Cited By (2)