In the Matter of an Application by Michael Anthony Prichard for an Inquiry into an Election in the South Australian Branch of the Federated Clerks Union of Australia [1985] FCA 153

Labourers' Federation v. Minister of State for Industrial

IN THE MATTER OF AN APPLICATION BY MICHAEL ANTHONY PRICHARD FOR AN INQUIRY INTO AN ELECTION IN THE SOUTH AUSTRALIAN BRANCH OF THE

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) ) INDUSTRIAL DIVISION ) S.A. No. 22 of 1984

IN THE MATTER of an Application by MICHAEL ANTHONY PRICHARD for an Inquiry into an election in the South Australian branch of the FEDERATED CLERKS'

This is the return of a notice of motion, dated 30th January 1985, calling upon Peter McCusker, and Paul Heywood-Smith to show cause why they should not be dealt with for contempt of court, alleged to have been committed "on or around the 5th and 13th day of November 1984". The notice of motion was filed by Michael Anthony Prichard, who applied to the Industrial Registrar on 30th August 1984 for an inquiry into an election in the South Australian branch of the Federated Clerks Union of Australia. That application was dealt with by the Industrial Registrar

pursuant to s. 160(1)(a) of the Conciliation and Arbitration Act

1904; on 25th October 1984 the matter was referred to the Court.

When it was first filed, the notice of motion did not

have subscribed to it, or filed with it, a statement of charge,

as required by Order 40 Rule 6 of the Federal Court Rules.

14th February 1985 the Court directed Mr. Prichard to file

serve such a statement. It is convenient to set out in full the

statement filed and served by Mr. Prichard as a result of

That Mr. P. McCusker, Solicitor of the firm Johnston Withers McCusker & Co, is guilty of contempt of this Honourable Court committed in the face of the Court and or in the precincts of the Court by:-

(a) contemptuous interference with judicial matters within the election inquiry in that he on or around the Sth day of November, 1984, improperly accepted and undertook service of documents i.e. copies of the application with attached "Notice from the Deputy/Registrar of the Federal Court Adelaide, on behalf of the State Branch of the Clerks' Union, the Returning Officer and Mr. R.D. Clarke, contrary to Order 48 Rule 2 (2)(b)(ii), and Order 48 Rule 3 (1) and contrary to an order by His Honour Mr. Justice Gray that the applicant for the inquiry serve certain persons.

fb) Misconduct and contempt in procedure in that he improperly accepted for service documents relating to the inquiry without authorisation, contrary to Order 48 Rules 2 and 3 whereby the applicant for the Inquiry has suffered prejudice and further costs.

(c) wilful disobedience and contempt of procedure by not filing notices of appearance for the directions hearing on 13th November, 1984, whereby the applicant for the Inquiry has suffered prejudice and further costs.

(d) wilful disobedience in that he McCusker, an Officer of this Court is in breach of an undertaking given accepting service of the Part IX Inquiry documents and not being in attendance at Court on the 13/11/84.

disobedience in that on the 13th November, 1984 he advised the Court that he appeared for Mr. R.D. Clarke, without filing an appearance contrary to ORder€sic.3 48 Rule 3 and contrary to the direction of the Deputy Registrars' notice attached to the application for the Inquiry, whereby, the applicant for this Inquiry has suffered prejudice and further costs.

(b) contemptuous interference and obstruction with judicial matters by deliberately denying on the 13th November, 1984, that service had been effected on the State Branch and the Returning OflLicer whereby the applicant for the Inquiry has suffered prejudice and further costs.

(c) wilful misconduct and obstruction with judicial matter in the presence of His Honour Mr. Justice Gray on the 13/11/84 by subsequently advising the Court after a brief adjournment, that he now had the "permission" of the purported State Branch Secretary to accept service and to appear this day for the State Branch and the Returning Officer contrary to and anconsistant with the undertaken already given by Heywood-SMiths''Csic.3J senior partner in the law firm of Johnston Withers McCusker & Co.

(d) wilful disobedience of the Federal Court and its rules i.e. Order 48 Rule 3 and contrary to the "Notice" of the Deputy Registrar of the Federal Court in that he being an Officer of the Court improperly attended Court on 11/12/84 to represent R.D. Clarke, the Returning Officer and the State Branch when no notice of appearance has been filed.

Mr. Prichard appeared in person to move the Court. Mr. Ward of

counsel appeared for Mr. McCusker and Mr. Heywood-Smith.

At Lhe outset, Mr. Ward sought to have the statement of charge struck out, on the basis that it was bad for duplicity and uncerlLain, and did not disclose alleguLlions which could amount to a contempt of court. He drew the attention of the Court to what

was sald by Evatt and Deane JJ. in Australian Building

Construction Employees' and Builders Labourers' Federation. v.

Minister of State for Industrial Relations (1982) 43 A.L.R. 189,

"Ie is a well recognized principle of law that "no person should be punished for contempt of court, which is a criminal offence, unless the specific offence charged against him be distinctly stated" (in Re Pollard (1968) LR 2PC 106 at 120; Coward v. Stapleton (1953) 90 CLR 573 at 579-80)."

The requirement that the facts constituting an alleged contempt be "distinctly stated" does not necessarily import all the law relating to forms of indictments and informations in the criminal law. For this reason, and for the reason that the statement of charge is plainly not drawn by a person with legal qualifications or experience, I was disposed to take a generous view of the statement of charge. I ordered that paragraph 2(c) be struck out, on the basis that it is not arguable that the facts therein alleged could constitute contempt; if anything, in the context of the other allegations made, those allegations would have amounted to a correction of what was said to be an irregular position taken by Mr. Heywood-Smith at a directions hearing. As to the other allegations, with considerable difficulty it was possible to construe the statement of charge as setting forth an

Following my ruling on the statement of charge, Mr. Prichard put his case in support of the motion. He gave evidence on oath, and called as a witness one Timothy Lawrence Stanley, who acted as returning officer in the conduct of the election the

subject of the inquiry. He also placed reliance on passages from

• 5 - the transcript of proceedings in the Court on 13th November 1984 and llth December 1984, on which dates directions hearings

At several points in his case, Mr. Prichard attempted to rely upon hearsay evidence, and his own prior statements, as to incidents alleged to have taken place in the South Australia District Registry of the Court. Objection was taken by Mr. Ward to each of these attempts, and in each case the evidence was ruled inadmissible. This matter involves a very serious charge against two persons who are acknowledged by the statement of charye to be solicitors; it is proper that those facing such a charge should require that it be proved against them by evidence properly admissible. More than once it was explained to Mr. Prichard that only those who were actually present in the registry at the time of the alleged events could give evidence of those events. Mr. Prichard's response was that no member of the staff of the registry had been subpoenaed to attend the Court, and that he was unaware of the names of those allegedly involved. He did not seek to adjourn the proceedings to secure further evidence, although given a short adjournment to facilitate the attendance of Mr. Stanley. Instead, he closed his case. Mr.

The result is that Mr. Prichard has wholly failed to

make out his case. There is no evidence that Mr. McCusker gave any undertaking to anybody, or accepted service of any document,

whether in breach of any of the Federal Court Rules or any order

of the Court, with or without any authority, or otherwise. It

-6- has not been proved that no notices of appearance were filed for certain persons; attention was not even directed to the original Court file. The Court cannot make its own internal inquiries for the purpose of ascertaining whether an allegation of contempt is made out. Such a serious matter must be proved by proper evidence. There is nothing in the pages of transcript to which Mr. Prichard referred which 1s capable of being construed as a denial, deliberate or otherwise, that service had been effected on the South Australian branch of the Federated Clerks Union of Australia, or on Mr. Stanley. No inferences as to any of these matters can be drawn from the evidence that is before the Court. The failure by Mr. Prichard to prove all the important elements of his allegations leads inevitably to the conclusion that his

In the circumstances of this case, however, mere dismissal on the grounds that the allegations were not proven is insufficient. Mr. Prichard's argument was largely based on the proposition that the alleged conduct of Mr. McCusker and Mr. Heywood-Smith constituted a breach of some express or implied obligation imposed by the Federal Court Rules, and that such breach was itself contempt of court. The only authorities relied on for the proposition that a breach of the rules of court was a

contempt of court were passages in the second edition of

Halsbury's Laws of England, and the second edition of Halsbury's Statutes of England. The fourth edition of Halsbury's Laws of England does not seem to have continued those statements. On the contrary, it is suggested that the use of its contempt powers by

a court to enforce its rules is extremely rare. Paragraph 38 of

-7J- volume 9 of the fourth edition deals with abuse of process as contempt. After referring to forging or altering court documents, and other acts of deceit the paragraph continues: "Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence

against justice, extending its influence beyond the parties to the action, it may be punished as a contempt.

Reference should also be made to paragraph 52 in the same volume, which deals with civil contempt in refusing to obey a judgment or order of a court, or acting in breach of an undertaking. It may be that, in certain cases, deliberate and contumelious disregard of the rules, to the extent of frustrating the operation of the court in relation to a particular case might amount to contempt.

Even taken at their highest, the allegations in the present case

Mr, Prichard's argument seemed to be that the presence of a notice endorsed on a@ copy application served on a person, warning that person that if no appearance is entered, the proceeding may be heard and orders may be made in his or her absence (which notice is required on an application in an election inquiry by 0. 48 R. 3(2)) imposes a mandatory obligation

on the person receiving it to enter an appearance. Such an

• 8 - argument is plainly not sustainable in terms of the notice itself. In addition, as Mr. Ward pointed out, 0. 9R. 2(2) specifically provides for the entry of an appearance after the date appointed for a directions hearing, without leave. Late entry of an appearance, or failure to enter one at all, could

In these circumstances, a finding of contempt, even if the factual allegations had been made out, was extremely