Allen, Francis v Henderson, Thomas Horatio

[1983] FCA 229

Re: FRANCIS ALLEN
And: THOMAS HORATIO HENDERSON
Nos. WA9, WA10 and WA11 of 1983
Conciliation and Arbitration Act 1904
4 IR 382

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Beaumont J.

CATCHWORDS

Conciliation and Arbitration Act 1904 - Alleged failure to comply with order of court to perform and observe rules of registered organisation - Suspension and dismissal of branch organisers from office - Principles regarding compliance with orders - Failure to comply to be established beyond reasonable doubt.

Conciliation and Arbitration Act, 1904 s.141

HEARING

SYDNEY

#DATE 2:9:1983

ORDER

1. The information be dismissed.

JUDGE1

By summons dated 27 May, 1983, the prosecutor charges the defendant with a failure to comply with an order of this Court contrary to s.141(4) of the Conciliation and Abritration Act, 1904 ("the Act").

A member of an organisation may apply to the Court under s.141(1) of the Act for an order under s.141 in respect of the organisation. An order under s.141 may give directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules (s.141(1G)). A person shall not fail to comply with a direction or order of the Court under s.141. A penalty of $400.00 is prescribed (s.141(4)).

The charge made by the prosecutor is that on 9 May, 1983, at the offices of the Building Workers' Industrial Union of Australia, Western Australian Branch at 108 Beaufort Street, Perth, the defendant, being a person who was on 6 May, 1983 ordered by this Court to perform and observe the rules of the Building Workers' Industrial Union of Australia ("the Union") by treating as null and void the resolution of the committee of management of the Western Australian Branch thereof carried at its meeting on 25 February, 1983, suspending the prosecutor as an organiser of the Western Australian Branch of the Union, failed to comply with the said order contrary to s.141(4) of the Act.

On 6 May, 1983, in proceedings in this Court under s.141 (being Nos. W.A. 1, 2 and 3 of 1983) between the prosecutor and Leslie Alan Semple Park as applicants and the defendant, the Union and others as defendants, Toohey, J. made the following orders:

"THE COURT ORDERS THAT:
1. In applications Nos. WA 1 and WA 2 of 1983 the respondent Thomas Horatio Henderson perform and observe the rules of the Federal organization by treating as null and void the suspension of the applicants as organizers of the Western Australian Branch of The Building Workers' Industrial Union of Australia on 2 February 1983.
2. In application No. WA 3 of 1983 the respondents Frederick Hagger, Thomas Horatio Henderson, P. Sideris, N.G. Parker, J.P. French and K.V. Hall perform and observe the rules of the Federal organization by treating as null and void the resolution of the committee of management carried at its meeting on 25 February 1983 suspending and dismissing the applicants as organizers of the Western Australian Branch of the Building Workers Industrial Union of Australia.
3. In applications Nos. WA 1 and WA 2 of 1983 the applicants have liberty to apply within 14 days to extend the operation of para.1 of the order to the respondent Frederick Hagger.
4. In application Nos. WA 1 and WA 2 of 1983 and in application No. WA 3 of 1983 the applicants have liberty to apply within 14 days to extend the operation of paras. 1 and 2 of this order to the respondent The Building Workers Industrial Union of Australia."

In his summons, the prosecutor gave the defendant the following particulars of his charge:

"That at 8.30 am on Monday 9th May 1983 the said Prosecutor attended at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street, Perth aforesaid and informed you that he the said Prosecutor was reporting for work whereupon the following conversation took place.
You said, 'You are not starting work. You are to go home. We will be having a meeting of the Committee of Management of the Western Australian Branch on Thursday, so ring me Friday and we will let you know what is happening'.
The said Prosecutor said, 'There is a Court Order that you were to treat the suspension and sacking as null and void.'
You said, 'I am aware of that but I am not interested. You are to go home.'
The said Prosecutor said, 'Where is Fred Hagger?'
You said, 'He isn't here.'
The said Prosecutor said, 'So you are in charge?'
You said, 'That's correct'.
The said Prosecutor said, 'Are you giving me a direction to go home?'
You said, 'Yes'."

The prosecutor gave evidence which, in general, accorded with the particulars furnished by him. He said that the defendant was present in Court on Friday 6 May, 1983 when Toohey, J. made the orders set out above (see Ord.37 Rule 2(5)(a)). There was no contact between the parties then or over the weekend. On the following Monday, 9 May, 1983, he spoke to the defendant at the Union offices in Perth. The defendant told the prosecutor that he was not starting work and that he was to go home and was to ring on the following Friday to see what was the decision of the management committee meeting. The prosecutor then said that there was a decision passed down on Friday by Justice Toohey instructing him to treat the suspension as null and void. The defendant then waved his hands and said "he knew that, he was not interested."

The prosecutor was accompanied on this occasion by Mr. H.C. Avis who gave a similar version of what was said. The defendant was not called to give evidence.

The orders made by Toohey, J. in the prior proceedings effectively secure the reinstatement of the prosecutor as an organiser of the Union. It is the duty of the parties bound by the orders to discover the proper means of obeying the orders (see Halsbury's Laws of England, 4th Ed. Vol. 9 at p.40). The orders must be complied with within a reasonable time (see Hillingdon London Borough Council v. Cutler (1968) 1 Q.B. 124). Compliance must in some way be within the power or capacity of the person directed before he could be held to "fail" to comply (see The Queen v. Kelly; Ex parte Berman (1953) 89 C.L.R. 608 at p.623 per Dixon, C.J.; cf. Ingram v. Ingram (1938) 38 S.R. 407 at p.410; Ganke v. Deputy Commissioner of Taxation (1975) 1 N.S.W.L.R. 252 at p.257).

These are criminal proceedings. Like proceedings for contempt of court, a failure to comply with a direction or order of the court will only be punished if the failure is established beyond reasonable doubt (see Halsbury's Laws of England, 4th Ed. Vol. 9 at p.40): "Like every other offence the facts by which (such contempt) is made out must be proved by admissable evidence to the satisfaction beyond reasonable doubt of the tribunal. Uncertain inferences from inexact proofs will not support such a charge" (Consolidated Press Ltd. v. McRae (1955) 93 C.L.R. 325 at p.333).

It is submitted on behalf of the defendant that the evidence adduced by the prosecution shows no more than a temporary failure to provide work to the prosecutor. In this connection, reference is made to the authorities which establish that, under an ordinary contract of employement, no obligation is imposed upon the employer to provide work. The employer is still, of course, liable to the employee for salary or wages but this is not in question here (see Turner v. Sawdon (1901) 2 K.B. 653; Collier v. Sunday Referee Publishing Company Ltd. (1940) 2 K.B. 647 at p.650; White v. Australian and New Zealand Theatres Ltd. (1943) 67 C.L.R. 266; Halsbury's Laws of England, 4th Ed. Vol. 16 at p.356).

The orders made by Toohey, J. called for an acknowledgement by the parties, in the form of appropriate conduct, that the prosecutor had been reinstated as an organiser. In my opinion, the evidence adduced by the prosecution does not establish beyond reasonable doubt that the defendant refused to make, in the form of appropriate conduct, an acknowledgement of the kind required by the orders. At best, the evidence is equivocal on the point.

It may be said that since in the conversation which occurred the defendant indicated that work was not available for the prosecutor during that week, an inference should be drawn that the defendant was thereby evincing an intention to avoid the issue by stalling. The reference by the defendant to his not being "interested" may be said to support this. However, the timing is important: the conversation occurred early on the first working day after the orders were made (they were not taken out until after this prosecution was launched). Clearly, a number of officials of the Union was involved and it is perfectably understandable and reasonable that a meeting of those concerned should be required to be held to discuss the matter. It is also to be expected that, in the ordinary course, it could be some days before the meeting could be held.

In my opinion, the proper inferences to be drawn from the conversation relied upon are uncertain. In those circumstances, I cannot be satisfied beyond reasonable doubt that the defendant has failed to comply with the orders made. I propose to dismiss the information.

JUDGE2

This matter and a number of related matters were heard together. By his summons in this matter dated 27 May, 1983, the prosecutor makes the following charge against the defendant:

"That on the 9th May 1983 at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street Perth in the said State THOMAS HORATIO HENDERSON of 24 Martin Avenue Rivervale in the said State being a person who was on the 6th May 1983 ordered by the Federal Court of Australia to perform and observe the Rules of the Building Workers' Industrial Union of Australia by treating as null and void the resolution of the Committee of Management of the Western Australian Branch thereof carried on at its meeting on 25th February 1983 dismissing the said Francis Allen as Organiser of the Western Australian Branch of the Building Workers' Industrial Union of Australia failed to comply with the said Order contrary to sub-Section 4 of Section 141 of the Conciliation and Arbitration Act 1904".

Particulars of the charge are the same as those given in the previous matter between the same parties, No. W.A. 9 of 1983. However, there is one difference between the charges made. In the earlier proceeding, it is alleged that the purported resolution suspended the prosecutor as an organiser whereas, in this proceeding, the allegation is that the resolution purported to dismiss him from that office. Nothing turns on that distinction for present purposes. For the reasons given in the earlier matter, I propose to dismiss the information.

JUDGE3

This matter and a number of related matters were heard together. By his summons in this matter dated 27 May, 1983, the prosecutor makes the following charge against the defendant:

"That on the 9th May 1983 at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street Perth in the said State THOMAS HORATIO HENDERSON of 24 Martin Avenue Rivervale in the said State being a person who was on the 6th May 1983 ordered by the Federal Court of Australia to perform and observe the Rules of the Building Workers' Industrial Union of Australia by treating as null and void the suspension of the said Francis Allen as an Organiser of the Western Australian Branch of the Building Workers' Industrial Union of Australia on the 2nd February, 1983 failed to comply with the said Order contrary to sub-Section 4 of Section 141 of the Conciliation and Arbitration Act 1904."

Particulars of the charge are the same as those given in the previous matter between the same parties, No. W.A. 9 of 1983. However, there is one difference between the charges made. In the earlier proceeding, it is alleged that the purported resoultion suspended the prosecutor as an organiser whereasin this proceeding, the allegation makes no reference to the resolution but refers simply to the purported suspension. Nothing turns on that distinction for present purposes. For the reasons given in the earlier matter, I propose to dismiss the information.