The Hon. R.I. Viner & Ors v Australian Building Construction Employees & Builders Labourers Federation [1982] FCA 99

CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS" FEDERATION

IN THE MATTER of an Application by THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION for Orders punishing DAVID SYME & CO. LIMITED for contempt of the Federal Court of Australia and for injunctions restraining the commission by David Syme & Co. Limited of any further contempt of the Federal Court of Australia.

JUDGES MAKING ORDERS: Bowen C.J., Evatt and Deane JJ.

2. The Australian Building Construction Employees' and Builders Labourers' Federation pay the costs of David Syme & Co. Limited of the motion to dismiss the appeal

On appeal from the judgment given and orders made by the Honourable Mr. Justice Northrop in the Industrial Division of the Federal Court of Australia.

THE HONOURABLE ROBERT IAN VINER (who sues as THE MINISTER OF STATE FOR INDUSTRIAL RELATIONS )

HER MAJESTY THE QUEEN IN RIGHT OF THE STATE OF VICTORIA

HER MAJESTY THE QUEEN IN RIGHT OF THE STATE OF WESTERN AUSTRALIA

IN THE MATTER cf an Application by THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES "AND

BUILDERS LABOURERS' FEDERATION for Orders punishing HERALD &

WEEKLY TIMES LIMITED for contempt of the Federal Court of Australia and for

injunctions restraining the commission by Herald & Weekly Times Limited of any further contempt of the Federal Court of Australia.

JUDGES MAKING ORDERS: Bowen C.J., Evatt and Deane JJ.

2. The Australian Building Construction Employees' and Builders Labourers' Federation pay the costs of Herald & Weekly Times Limited of the motion to dismiss the

On appeal from the judgment given and orders made by the Honourable Mr. Justice Northrop in the Industrial Division of the Federal Court of Australia.

THE HONOURABLE ROBERT IAN VINER (who sues as THE MINISTER OF STATE FOR INDUSTRIAL RELATIONS )

HER MAJESTY THE QUEEN IN RIGHT OF THE STATE OF VICTORIA

HER MAJESTY THE QUEEN IN RIGHT OF THE STATE OF WESTERN AUSTRALIA

IN THE MATTER of an Application by THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS ' FEDERATION

for Orders punishing CAVID SYME & CO. LIMITED and HERALD &

WEEKLY TIMES LIMITED for contempt of the Federal Court of Australia and for

anjunctions restraining the conmission by David Syme & Co. Limited and Herald & Weekly Times Limited of any further contempt of the Federal Court of Australia.

There are before us two appeals from decisions of Northrop J. dismissing motions brought by The Australian Building Construction Employees' and Builders Labourers' Federation (the "Federation") against David Syme & Company Limited and the Herald and Weekly Times Limited. The appeals have been argued together. Previously we have heard two motions to dismiss the appeals on the ground that they were incompetent. Except to the extent to which the appeals raised for consideration the propriety of orders for costs made by Northrop J. against the Federation, we upheld those motions concerning competency. The argument regarding costs of those motions has also been heard today.

The question involved is the same in relation to the costs awarded by Northrop J. and the costs of the motions concerning competency. It is a narrow one. It is whether the proceedings for contempt were for the purposes of s.197A(b) of the Conciliation and Arbitration Act 1904, (the "Act") proceedings "in a matter arising" under the Act.

It is conceded by senior counsel for the Federation that, in the laght of what was said in the judgments in the High Court in the recent case of Victoria v. The Australian

Building Construction Employees'_and Builders Labourers'

Federation the contempt proceedings are, in themselves,

proceedings under the Federal Court of Australia Act. It is, however, submitted that, for the purposes of s.197A(b) of the Act, they should be seen as proceedings in a matter arising under the Act, namely, the pending proceedings in which orders for deregistration of the Federation are sought.

In our view the contempt proceedings are separate and distinct proceedings. They cannot properly, for the purposes of s.197A(b) be regarded as proceedings in the deregistration proceedings. The parties are different, the subject matter is different and the proceedings are of a criminal nature. For the purposes of s.197A(b) the contempt proceedings are themselves the relevant matter. As has been said, it is perforce conceded by senior counsel for the Federation that those proceedings do not arise under the Act. In the result we would dismiss each appeal on the question of costs end would make orders for costs in the motions.

The order in the appeals and motions will be: Appeal dismissed, the Federation to pay the other party's costs of the motion to dismiss the appeal for want of

What the section requires is that the circumstance (a) or (b) should occur by reason of the existence of industrial action. There is no question that it "existed" until 8:00 a.m. on 2 December 1981 and on the facts agreed, it is clearly open to me to find that any inability to usefully employ the applicant or any serious disruption,as at 11:30 a.m. that day,was by reason of it.

I therefore do not think that the language of the section requires me to hold that a declaration made

after industrial action ceases is not authorised by it.

Ieo- .-7 that this and the Pret +. ..$ ages are a true copy of the Recasv..s :ur Judgment herein of hig Honour