The Australian Building Construction Employees and Builders Labourers Federation [1982] FCA 147

Federal Court of Australia|1982-05-11|Before: Deane JJ

CATCHWORDS Criminal contempt - registered organisation and its officers charged - whether statement made by officers in compulsory conference admissible - whether statement of charge

sufficiently particularized allegations against officers -

Conciliation and Arbitration Act, 1904, ss. 4 and 27

The Australian Building Construction Employees' and Builders' Labourers' Federation & Ors. Vv. The Honourable Robert Ian Viner who sues as Minister of State for Industrial Relations & Ors.

ON APPEAL FROM A SINGLE JUDGE OF THE I'EDERAL COURT

THE HONOURABLE ROBERT IAN VINER who sues as Minister of State for Industrial Relations

IN THE MATTER of an application by THE HONOURABLE ROBERT IAN VINER AND OTHERS that the Respondents THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES ' AND BUILDERS' LABOURERS ' FEDERATION, NORMAN L.

GALLAGHER, PATRICK DONNELLY, PHILIP TATE, BRIAN BOYD and MARTIN BINGHAM be punished for contempt of this Honourable Court or to make such order as may seem fit or proper, by reason of the matters set out in the Statement of

Charge. ORDER JUDGES MAKING ORDER: Smithers, Evatt and Deane JJ. WHERE MADE: Melbourne

Building Construction Employees' and Builders' Labourers' Federation be adjudged guilty of contempt of the Federal Court of Australia be affirmed.

"that the first-named respondent, the Australia Construction Employees and Builders Labourers' Federation, in respect of the contempt of the Federal Court of Australia of which it was

-3- between a date on or about 5 April 1982 and 21 April 1982 it interfered with the course of justice by conduct and statements which were intended by it to, and which had the tendency to, dissuade persons from giving evidence on behalf of the applicants in the cancellation of registration proceedings herein, or to dissuade them from giving evidence unfavourable to the first-named respondent, and which were also intended by it to, and had the tendency to, induce the Master Builders' Associations to discontinue as applicants in the said proceedings, shall pay a fine of $15,000.00 which fine shall be paid to the Registrar within 7 days of this date by the first-named respondent or by an agent properly authorized in writing by the first-named respondent to

be affirmed subject only to the variation that there be substituted for the words and figure "within 7 days of this date" the words and figures "on or

of the Federal Court of Australia and the orders of

-4- 18 May, 1982 imposing a sentence of two months' imprisonment on the said Norman L. Gallagher and for the issue of a warrant for his apprehension be set

Boyd be adjudged guilty of contempt of the Federal Court of Australia and the orders of 18 May, 1982 that the said B. Boyd pay a fine of $500.00 or in default of such payment be imprisoned for a period of 14 days be set aside.

The Australian Building Construction Employees' and Builders' Labourers' Federation pay the respondents

IN THE MATTER of at Application by THE 4A HONOURABLE ROBERT IAN VINER AND

EMPLOYEES' AND BOILDERS* LABOURERS ' FEDERATION, NORMAN L. GALLAGHER, PATRICK DONNELLY, PHILLIP TATE, BRIAN BOYD and ii MARTIN BINGHAM be punished for contempt of this Honourable Court or to make such ordar as may seem fit or proper, by reason of the matters set out in

THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION

THE HONOURABLE ROBERT _IAN VINER (who sues as Minister of State for Industrial Relations)

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THE MASTER BUILDERS' FEDERATION OF AUSTRALIA INCORPORATED

THE MASTER BUILDERS' ASSOCIATION OF NEW SOUTH WALES

THE MASTER BUILDERS' ASSOCIATION OF SOUTH AUSTRALIA (INCORPORATED)

MASTER BUILDERS' ASSOCIATION OF THE AUSTRALIAN CAPITAL TERRITORY

THE MASTER BUILDERS" ASSOCIATION OF WESTERN AUSTRALIA (UNION OF EMPLOYERS PERTH)

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naam lea tererienb te ne SAAT Le PA tera alee Senna nt eS rn

Smithers J.: On 18 May 1982 the appellants Gallagner, Boyd and the Builders' Labourors' Federation (the Federation) wera adjudged guilty of contempt of this Court and penalties were

The case put against the appellant Gallagher was that in April 1982 he procured or continued stoppages of work at varjous building sites of H.M.Keast & Sons Pty. Ltd. (the company) for a period of a week or longer, that he had stated that the stoppages were imposed because Mr. Keast, the Chairman of Directors of the company was an instigator of the then pending deregistration proceedings against the Federation and that such conduct and statements had the tendency and were intended to constitute a threat to persons participating in or supporting the deregistration proceedings that they would be injured or victimised for so participating or supporting, and other threats relating to such proceedings. Tne caSe so put was within the particulars of contempt as charged against the

In my opinion the evidence justified findings by the learned trial judge that each of these elements of the charge was proved and the learned Judge rightly did so find and thereupon adjudge that the appellant Gallagher had committed a

Before this Court, no serious question was raised as to the validity of the finding of the learned Judge thaz the Federation was guilty of a contempt of Court in that between 5 and 27 April 1982 it had precured and brought about the continuance of certain stoppages of work by its members at sites in and around Melbourne at which such members were engaged as employees of the company in building operations being conducted on such sites by it and that the conduct of the Federation had the tendency and was engaged in with the intention to constitute a threat to persons participating im or supporting the deregistration proceadings that they would be injured or victimized for so participating or supporting and other threats as set forth in para (i) of the particulars

appellant Federation that the fine imposed on it in respect of

But for each of the appellants Gallagher and Boyd it was submitted that the learned Judge did not find that either of them had committed conduct constituting contempt of Court, and, alternatively, that if he did so find, such finding was not supported by the evidence or alternatively by evidence

In respect of a charge of contempt of Court it is essential that the charge be distinctly stated to the person accused so that he may have adequate opportunity to explain or deny the allegations made. As was said in tHe unanimous judgment of Williams C.J., Kitto and Taylor JJ. in Coward v.

Stapleton (1953) 90 C.L.R. 573 at pp. 579 and 580:-

"Even apart from any such express provision, however, it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be a@istinctly stated and an opportunity of answering ict given to him: Ir re Pollard (1868) L.R. 2 P.C. 106, at p.120; R.v. Foster; Ex parte Isaacs (1941) V.L.R. 77 at p.8l. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations; Chang Hang Kiu v. Piggott (1909) A.C. 322, at p.315. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.

Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon. ..."

"(a) Oa the Sth April 1982 each of the Respondents [the appellants] Donnelly, Tate

and Boyd procured stoppages of work by all members of the Respondent Federation employed on building operations being conducted on the following sites:-

(i) 230 Collins Street, Melbourne (ij) Fitzroy North Primary School (iii) Williamstown Primary School

On the 16th April 1982 the Respondent [appellant] Bingham procured stoppages of work by all members of the Respondent fappellant] Federation employed on building operations being conducted on the site of the Aspendale Special Development School.

At all material times the building operations on each of the said sites were being conducted by H.M. Keast and Sons Pty. Ltd. ('the company').

('Keast') was the Chairman of the Directors of the company.

At the time of procuring those stoppages of work each of the Respondents, [appellants] Donnelly, Tate, Boyd and Bingham tinfozmed servants or agents of the company that the reason for imposing the stoppages was because of Keast baing involved in the present proceedings against the Respondet fappeliant] Federation for tne cancellation of its registration as an organization under the Conciliation and Arbitration act 1904 {'tne deregistration proceedings').

From the time of the procuring of the stoppages up to the 21st April 1982 no was done on any of the said sites by any members of the Respondent [appellant] Federation.

The procuring of the stoppages of work and the continuatiion of those stoppages was brought about by the Respondent [appellant] Federation or by the Respondent [appellant] Gallagher, or by the Respondent [appellant] Donneily, or by the Respondent, [appellant] Yate, or by the Respondent [appellant] Boyd, or by the Respondent [appellant] Bingham, or each of them.

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(hk) The Respondent [appellant] Gallagher has Stated that the stoppages of work on the said sites were because of Keast baing involved in the deregistration proceedings.

(i) The conduct of and the statements made by each of the respondents [appellants] had the tendency to and were intended to -

(3) constitute a threat to persons participating in or supporting the deregistration proceedings, that they would be injured or victimized for so participating Or supporting.

(ii) constitute a threat to parsons bringing or intending to bring proceedings in the Federal Court of Australia against the Respondent [appellant] Federation that they

would be injured or victimized for so bringing or intending to bring such proceedings.

(iii) dissuade persons from giving evidence on behalf of the Applicants in the deregistration proceedings or dissuade them from giving evidence unfavourable to the Respondent [appellant] Federation.

(iv) impose pressure on the applicants in order to influence them in the conduct of the

deregistration proceedings or to discontinue the said proceedings."

So far as the appellant Gallagher was concered these Particulars contain allegations in the nature of background, and also the essence of the charge against him which was that he procured the stoppages of work referred to or brought about their continuation, that he had stated that the stoppages were because of Keast being involved in the deregistration proceedings, and that that conduct and statement tended to and

were intended to constitute threats of the nature of those

specified in sub-para. (i), (ii), (iii) and (iv) of para (i)

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of the particulars set out above. The evidence against the

(a) that on the evening of 5 April 1982 he had informed one Ainsworth that the bans imposed by the Builders Labourers' Federation on construction work by the builder H.M. Keast & Son Pty. Ltd. were because an executive of the company Mr. R. Keagt was a driving force bahind the moves to deregister the Union. He added, "We are going to repay a few debts; it will be

(b) that Mr. Keast was chairman of directors of H.M. Keast & Sons Pty. Ltd. and was also a member of the Council of the Victorian Branch of the Master Builders'

(c) that Mr. Keast had previously been President of the Federation, and while he was so President in September 1981, a decision in which he participated had been made by the Federation to support the application by the Federal Government to the Federal Court to

(d) that at all material times the appellant Gallagher

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preparation of the pending application to deregister

that stoppages of work had occurred as and when stated in pars. (a) and (b) of the particulars of charges and that such stoppages continued until at least 20 April

that as a result of information received by Mr. Keast from his company's site foreman at 230 Collins Street, Melbourne of the stoppage of work at that site he instructed the Victorian Branch of the Master Builders' Federation on 5 April 1982 to notify a

dispute to the Conciliation & Arbitration Commission

that the notification of the dispute came on for hearing before his Honour Mr. Justice Alley on 8 April 1982 at which Mr. Keast was present. Mr. Shaw appeared for the Company and Mr. Boyd an organizer of the Federation appeared for it. Part of the

BOYD: Now to the matter at hand. The union views the situation with H.M. Keast as part of a football- match, if I can use the analogy ~- we are now entering the sacond quarter. In the first quarter the union for Many months has been under attack in legal

quarters in particular, namely Lhe deregistration in the Royal Commission where we have had to try and prove our bona fides. We are getting a bit jack of it, so to speak, and we are now entering the second quarter where we are going to put it on people we balieve have ---

HIS HONOUR: I thought you were not co-operating at aj] in the Royal Commission; you are not playing. The first quarter of the match and yet you refused to play.

MR. BOYD: No, you are not entirely correct, because the game is still going on in the media and it is played out that way. And if that is the way the employers want to play it, well, we will play it our way, and we are entering the second quarter and we believe we will take the battle right back to the employer. We have information, or our secretary has, that H.M. Keasts are involved deeply in those matters, and we are willing to take the fight right back to them. The MBA representative, Mr. Shaw said that no such demand had been put on the company how to fix a dispute; well, that is not true, Through the foreman at 230 Collins Street, I did say that what we requested was that the company Kcasts meet with the secretary to discuss the problem. And that is how the union views it; that if Keasts will meet our secretary to talk out the information the union has, then we might view the bans in a different light. That is all I have got to say, your Honour.

HIS HONOUR: How do you think these bans line up with the package settlement and the statement of intent?

MR BOYD: I have got no comments on that, the secretary would have to answer that.

HIS HONOUR: Your personal position is that you are carrying out the directions of the secretary, is that so?

MR BOYD: and the union executive, yes. And our invitation stads: that Keasts meet with our secretary.

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HONOUR: Well, this is the only suggestion I can make. The only other thing I can do is to express my displeasure of this, which I do. It will come as no Surprise to Mr. Boyd. But the commission cannot condone these blatant bans, and 1 beliave they are completely outside the spirit of intant of the package. No doubt there can ba some argument about that, but I have no dount in my own mind they are outside the spirit of the package. 1 feel that the only progressive thing that can be done without a great deal of confidence that it will achieve anything immdiately, is to have a conference with the general secretery, and I think it ought to he done on the basis of a compulsory conference, Mr. Boyd, is it your suggestion, in any evenc, that there should be a discussion with the general secretary?

HONOUR: I am proposing that now that the matter has been brought to the commission, I

am proposing to hold a conference next Wednesday afternoon.

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.

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 mattec 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 arceund 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 Royal Commission, the company was the first on 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

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Statement to the effect that on the basis of his knowledge of tne employers in the building industry, the company would nok get any Support from those

(1) After further discussion between those at the conference, Mr. Justice Alley again asked Mr. 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 bean 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 jn which it tended to ,and was intended to constitute a threat to persons participating in or supporting the deregistration proceadings 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.

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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 hearG on 8 April 1982, the appellant Gallagher appeared with the appellant Boyd for the Tederation. 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 inguired 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 js no other reasonable interpretation of the exchange that took place. And there was, in this exchange an assertion by the appellant Gallagher that the continuation of the stoppages was his action as well as that of the Faderation. 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 then 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

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iniquity committed thereat. Evidence of conduct in such a conference constituting an iniquity, such as a contempt of court, would he 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 be 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 upon 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 payment of fines which had been imposed on mambers of the Federation with raspect to their refusal

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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 affect the minds of witnesses must be stopped ...", the learned Judge said, "The present case deals with intimidatory conduct ~ not

"T 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 him partly for the purpose of dissuading persons from giving evidence on behalf of the applicants in the deregistrationu 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 wera intended by him to induce the Master Builders' Associations throughout Australia to withdraw from their role as joint applicants in the deregistration proceedings." 7

Tt is to be observed also that the order of the learned Judga

recites that the appellant Gallagher had committed thea

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contempt of which he was adjudged guilty on 11 May 1982, namely, that between a date on or abouc 5 April 1982 and 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, Ac the compulsory conf2rence nobody was in any doubt about the subject in dispute. Tnat 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 appellant Gallagher was non co-operative. When asked what he expected to achieve by his actions he was quite direct and to the point in saying that he expected his actions to achieve a withdrawal of support by the Master Builders' Association throughout Australia for the deregistration proceedings. Few 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

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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 one of those who conveyed a message to the building workers at one site that they were to stop work and explained the objective of the 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.

As to the appellant Federation, no ground of invalidity thereof was submitted. That appeal should be

An appellate court interferes with the sentence 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.U.R. 386 at p.388. Compare Harris v. The Queen (1954) 90 C.L.R. 652, followed by the

Federal Court in Kovac v. The Queen (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 obtajns awards imposing obligations upon employers which it may enforce in the Courts of the land. It 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 wacning 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

proceedings. Such a ruthless axercise of destructive

industrial power would be objectionable enough in any circumstances but to use it accompanied by threats of more of the same 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 Galiagher

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 Gesigned 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 the administration of justice. Accordingly, in my opinion this is not a case for interference

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

(b) the appeal of the appellant Gallagher should bes

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

THE HONOURABLE ROBERT IAN VINER who sues as Minister of State for Industrial Relations

IN THE MATTER of an application by THD HONOURABLE ROBERT IAN VINER AND OTHERS that the Respondents THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS' LABOURERS ' FEDERATION, NORMAN L.

("the Federation"), Mr. Norman Gallagher and Mr. Brian Boyd

appeals from a judgment and orders of Keely J. finding that

it or he was guilty of criminal contempt of the Federal Court and imposing a penalty. In the case of the Federation, the penalty imposed was a fine of $15,000. In the case of Mr. Gallagher, the penalty imposed was a term of imprisonment for a period of two calendar months. In the case of Mr. Boyd, the penalty was a fine of $500 accompanied by an order that, in default of payment thereof, he be imprisoned for a period of fourteen (14) days. Associated charges of criminal contempt against three other persons (Messrs. Donnelly, Tate

At relevant times, the Federation has been registered as an organisation of employees under the

Conciliation and Arbitration Act, 1904 ("the Act"). In

September, 1981, the then Commonwealth Minister of State for Industrial Relations (The Hon. Robert Ian Viner), the State of Victoria and the State of Western Australia instituted proceedings in the Federal Court against the Federation seeking, pursuant to s.143 of the Act, an order directing the Industrial Registrar to cancel the registration of the Federation. It is convenient to refer to those proceedings as "the deregistration proceedings". In December, 1981, the Australian Federation of Construction Contractors, the Master Builders' Federation of Australia Incorporated, and the Master Builders' Associations of New South Wales, Victoria, South Australia, Australian Capital Territory and Western Australia were added as applicants in the deregistration

The contempt of court which was found, at first instance, to have been proved against each of the Federation, Mr. Gallagher and Mr. Boyd was in relation to the deregistration proceedings. The motion instituting the contempt of court proceedings was, for administrative purposes, numbered in the deregistration proceedings. That numbering should not be permitted to obscure the fact that the contempt proceedings are separate and distinct

proceedings pursuant to s.3l of the Federal Court of

aun numbered paragraphs, his findings as to the essential

In the course of his judgment, Keely J. summarized,

Building operations were being conducted by H.M. Keast & Sons Pty. Ltd. (the company) on building sites at 230 Collins Street, Melbourne; Fitzroy North Primary School; Williamstown Primary School and Aspendale Special Development School. The company employed members of the Federation as builders' labourers at those sites.

The company is a member of the Master Builders' Association of Victoria, an association of employers registered as an organization under the Act which is a joint applicant in the deregistration proceedings.

Mr. Reginald Keast was the chairman of the directors of the company. Until October 1981 he was the president of the Master Builders' Federation of Australia and was and is a council member of that federation, positions which he held as the representative of the Master Builders' Association of Victoria in which body he was and is a councillor.

The respondent Gallagher was both the general secretary of the Federation and the secretary of its Victorian branch during the period from 5 April, 1982 to 21 April, 1982. Each of the other four named respondents to the notice of motion was an organizer of the Federation.

The respondent Federation on or before 5 April, 1982 made a decision to "ban" work by builders' labourers on building sites at which the company was conducting building operations. The eviderce does not disclose the precise terms of the decision nor the identity of the body or person within the Federation which or who made the decision. The ban

Subject to four matters to which subsequent reference those findings of fact were not disputed by the

was still ain force on 16 April, 1982 but by 27 April, 1982 had been "totally lifted". It appeared to be accepted by the applicants that it was lifted on 21 April, 1982. The evidence does not disclose

the identity of the body or person which or who lifted the ban.

On the evening of 5 April, 1982 the respondent Gallagher told Mr. Ainsworth, the Chief Industrial Reporter for the Sun News Pictorial who had held that position for approximately three years, that the bans were imposed "because an executive of the company, Mr. Reg Keast, was the driving force behind the move to de-register the Federation". The respondent Gallagher also said to him that "We are going to repay a few debts. It will be tit for tat from now on".

(a) At approximately 10.30 a.m. on 5 April, 1982 the respondent Boyd called at the 230 Collins Street, Melbourne building site and had a meeting of the members of the Federation employed on that site. Approximately 15 minutes later he informed the company's site foreman that all members of the Federation employed on the site were being sent home and that the reason for the union's action was that the Federation, through a very reliable contact, had been told that the company was largely responsible for the deregistration proceedings. The three members of the Federation employed on the site by the company left the site about thirty minutes after Mr. Boyd arrived. As a result of information which he received on 5 April, 1982 from site foremen on this site, Mr. Keast instructed the Master Builders' Association of Victoria to notify an industrial dispute to the Australian Conciliation and Arbitration Commission (the Arbitration Commission).

(b) On the same day a person whose identity was not established by the evidence but who was admitted by the Federation in other proceedings to have been an organizer of the Federation, called at the Fitzroy North Primary School site and told the company's site foreman that he had instructed the members of the Federation on site to leave the Job because the Company was the main instigator in trying to get the Federation deregistered. The evidence did not establish that any stoppage of work at that site took Place on that day.

On the same day at approximately 2.00 p.m. the respondent Donnelly called at the Williamstown Primary School site and told the company's site foreman that the Federation had placed a black ban on jobs being carried out by the company and that the ban had been imposed because the company was the main instigator in the deregistration proceedings against the Federation. The site foreman (Mr. Wilkins) in his affidavit said that he heard Mr. Donnelly make a statement to certain members of the Federation on the site "to the effect that no productive work was to be done" by them. However, under cross-examination by Mr. Ryan, of Queen's Counsel, on behalf of all the respondents, he agreed that Mr. Donnelly did not stop them finishing the work remaining to be done by them, that they left the site because there was no more work for them to do and that they would have left the site at that time "whether or not Mr. Donnelly had spoken to them". He said that it was a matter for future arrangement between the company and the sub-contractor as to when he and his employees came back to the site to do more work and that no-one on behalf of the company made any request for the sub-contractor to return to work on the site because there were other jobs which were more important.

On 16 April, 1982 the respondent Bingham called at the Aspendale Special Development School site, introduced himself to the company's site foreman as a Federation organizer and said "I suppose you have been expecting me". Under cross-examination the Site foreman agreed that the latter remark apparently was made "because by that time ... it was common knowledge that the Federation had placed a ban on" the company. Mr. Bingham then said "I am here to send the labourers home" and, in reply to a question, that it was because of H.M. Keast and Sons' involvement in the deregistration proceedings. He addressed a meeting of the five builders' labourers on the site and after the meeting told the site foreman that the labourers were going home. The labourers left the site shortly afterwards, after packing away tools, and the respondent Bingham then left the site.

The respondent Boyd appeared on behalf of the Federation before the Arbitration Commission on 8 April, 1982 in a hearing related to the notification by the Master Builders' Association of Victoria of the abovementioned events when Federation organizers on 5 April, 1982 called at the company's building sites at 230 Collins Street, Melbourne; Fitzroy North Primary School and Williamstown Primary School. In a public hearing in the presence of the representative of the Master Builders' Association of Vactoria and the company, Mr. Boyd stated that "if that is the way the employers want to play it, well, we will play it our way ... and we believe we will take the battle right back to the employer. We have information, or our secretary has, that H.M. Keasts are involved deeply in those matters" (referring to the deregistration proceedings and the Royal Commission) "and we are willing to take the fight right back to them". He also stated that the Federation wished that the company would meet with the secretary (the respondent Gallagher) and that "if Keasts will meet our secretary to talk out the information the union has, then we might view the bans in a different light". He said that he was carrying out the directions of the secretary and the union executive; he also stated that he was "in no position to lift (the bans) at this stage" but that if the company contacted the secretary and arranged

a meeting the secretary "might be amenable to" lifting the bans.

On 14 April, 1982 the matter again came before the Arbitration Commission, when the respondent Gallagher and Mr. Boyd represented the Federation. The parties were asked whether they had anything further to add to what had been said during the proceedings on 8 April but neither party wished to make any further statements, and the matter was then adjourned into conference. During that conference Mr. Gallagher said, amongst other things:-

(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 payment of fines which had been imposed on members of the federation with respect to their refusal to give evidence before the Royal Commission."

Two of the matters which the appellants raise in relation to the above findings of fact involve supplementation of them. They are not in dispute. The first 1s that the notification by the Master Builders' Association of Victoria referred to in paras. 7(a) and 8 was to the Australian Conciliation and Arbitration Commission ("the Commission") and took the form of a notification of an industrial dispute pursuant to s.25 of the Act. The second is that the conference referred to in para. 9, which took place on 14 April, 1982, purported to be a compulsory conference pursuant to s.27 of the Act. The other two matters relating to the content of his Honour's findings of fact are in dispute. The appellants submit and the respondents contest: (i) that, contrary to what his Honour said in para. 5, there was uncontradicted evidence that the decision to impose the bans was taken by the Federal Management Committee of the Federation; and (i1) that what was said at the conference of 14 April, 1982 (para. 9) should

be disregarded for the reason that his Honour erred in

On the question of the identity of the organ of the Federation which imposed the bans, the appellants point to the evidence of Mr. Ainsworth who is a journalist employed by the Herald & Weekly Times Ltd. Mr. Ainsworth gave evidence of a conversation which he had with Mr. Gallagher on 5 April, 1982 in which Mr. Gallagher informed him that the bans which had been imposed on H.M. Keast & Sons Pty. Ltd's construction work "were imposed because an executive of the company, Mr. Reg Keast, was the driving force behind the moves to deregister the union". Cross-examined by counsel for the present appellants, Mr. Ainsworth said that he had "understood" that what were being referred to were decisions taken by the Federal Management Committee. Mr. Ainsworth then assented to the suggestion that "when these statements were being made by Mr. Gallagher he was informing you of the decision of the Federal Management Committee of the Union". Ultimately, in the view we take, little turns on whether that evidence of what Mr. Ainsworth "understood" warranted a positive finding, in the absence of any evidence from the Federation, that the bans had been imposed by the Federation's Federal Management Committee. On balance, it seems to us that such a positive finding was not warranted. We note, in that regard, that the transcript at first instance indicates (at p. 212) that the submission made on behalf of the appellants to Keely J. was that there was "no basis on the evidence which would justify" the positive

The basis of the appellants' contention that the evidence of what was said at the conference of 14 April should have been rejected is the provision in s.27(6) of the Act that, except to such extent as the person presiding over the conference directs that it be held in public, a conference under s.27 of the Act "shall be held in private". There is no suggestion that Alley J., who presided over the conference, directed that it be held in public. The resuit, so the appellants contend, is that it follows from the statutory requirement that the conference be in "private" that nothing that was said or done at it can be admitted in evidence in other proceedings. In the course of argument, senior counsel for the appellants tended to modify this unqualified submission. The modified submission was that the evidence of what occurred in the private conference should

It is not necessary, for the purposes of the present appeal, to determine the extent of any limitation which s.27(6) of the Act may impose upon subsequent disclosure of what was said or done in a compulsory private conference. It suffices, for present purposes, to say that we are of the clear view that there 1s nothing in the provisions of s.27(6) which precludes evidence of what happened in a compulsory conference being given in subsequent proceedings for criminal contempt of court where what was said or done in the conference is alleged either to constitute, in itself, criminal contempt or to provide

Nor do we accept the appellants' narrower submission that Keely J. should, as a matter of discretion, have rejected the evidence of what was said by Mr. Gallagher at the conference on 14 April, 1982. We are conscious of the desirability that, generally speaking, parties to a compulsory conference under s.27 should be able to speak frankly without fear of being subsequently disadvantaged by reason of genuine efforts to settle a dispute. We do not, however, consider that that consideration will ordinarily warrant rejection of evidence of what is said or done in such a conference where such evidence is adduced to support independent proceedings for criminal contempt of court. In our view, the evidence was, at least against the present

It is, in the circumstances, unnecessary that we express any concluded view on the question whether the conference of 14 April was in truth a compulsory conference under s.27 of the Act. Keely J. held that it could not have been for the reason that the Commission's power to call a conference under s.27(1) is a power which only exists for "the purposes of the performance of (its) functions in respect of an industrial dispute" and an industrial dispute must be ~ "dispute as to industrial matters which extends

beyond the limits of any one State". We should, however,

~12- indicate that we see considerable force in the argument of senior counsel for the appellants that Keely J. was in error 1n making a positive finding that the conference could not have been validly convened under s.27. That argument was based on the inclusion, in the definition of "industrial dispute" in s.4 of the Act, of a "threatened, impending or probable dispute", on cases such as The Queen v. Spicer; Ex

parte Seamen's Union of Australia ((1957) 96 C.L.R. 341 at

p-346); The Queen v. Gallagher; Ex parte Australian Coal

and Shale Employees' Federation ((1966) 115 C.L.R. 335 at p.

and on the sometimes discounted fact that the legislative power conferred by s.51(xxxv) of the Constitution extends to conciliation and arbitration for "the prevention" as well as "the settlement" of industrial disputes extending beyond the limits of any one State. As at present advised, we incline to the view that the material before Keely J. did not warrant a finding by his Honour that Alley J. had acted

In pursuance of 0.40 r.6 of the Federal Court Rules, the respondents filed a "Statement of Charge" setting out particulars of the acts alleged against each of the Federation, Mr. Gallagher and Mr. Boyd. The one Statement of

Charge was filed against them and the three other persons

-13- (Messrs. Donnelly, Tate and Bingham) who, as has been mentioned, were also charged with criminal contempt and found

by his Honour to be not guilty. Its content was as follows:

"Between the 5th April 1982 and the 21st April 1982 the Respondents have and each of them has committed contempt of the Federal Court of

Australia by interference with the course of justice.

(a) On the 5th April 1982 each of the Respondents Donnelly, Tate and Boyd procured stoppages of work by all members of the Respondent Federation employed on building operations being conducted on the following sites:-

(i) 230 Collins Street, Melbourne (ii) Fitzroy North Primary School (211) Williamstown Primary School

At a glance

Court

Decision date

Before

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Source

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Judgment (275 paragraphs)