Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd

[1982] FCA 39

Re: THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS'
FEDERATION
And: DAVID SYME & CO. LTD.
Re: THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS'
FEDERATION
And: THE HERALD AND WEEKLY TIMES LTD. (1982) 59 FLR 48
Nos. V30 and V31 of 1981
Contempt of Court - High Court and Federal Judiciary

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Bowen C.J.(1), Evatt(1) and Deane(1) JJ.

CATCHWORDS

Contempt of Court - distinction between criminal and civil contempt - motion that appeal be dismissed as incompetent - whether an appeal lies from acquittal of criminal contempt after a hearing on the merits - whether criminal contempt is sui generis or 'criminal in character' - whether an appeal lies where injunctive relief is sought based on criminal contempt.

Conciliation and Arbitration Act, 1904, ss.143, 197A

Federal Court of Australia Act, 1976, ss. 24, 31

Contempt - Criminal contempt - Acquittal after hearing on merits - Whether appeal from acquittal lay to Full Court - Whether appeal lay where injunctive relief is sought based on criminal contempt - Conciliation and Arbitration Act 1904 (Cth), ss. 143, 197A - Federal Court of Australia Act 1976 (Cth), ss. 24(1)(a), 31.

High Court and Federal Judiciary - Criminal contempt - Acquittal after hearing on merits - Whether appeal to Full Federal Court open - Federal Court of Australia Act 1976 (Cth), ss. 24(1)(a), 31.

HEADNOTE

The appellant had brought proceedings against each respondent alleging a criminal contempt of court in that each had interfered with the due administration of justice in deregistration proceedings brought in the Federal Court under s. 143 of the Conciliation and Arbitration Act 1904 against the appellant. The relief sought in both proceedings was refused with costs. Upon the appellant filing notices of appeal the respondents brought motions seeking that both appeals be dismissed as incompetent. At the hearing of those motions the respondents conceded that appeals lay in respect of the order for costs.

Held: Per curiam - (1) The principle that the appellate jurisdiction conferred by s. 24(1)(a) of the Federal Court of Australia Act 1976 did not include an appeal from an acquittal pronounced in criminal proceedings after a hearing on the merits was a fundamental principle of the common law which should continue to be recognized and applied in the Federal Court except to the extent that it is modified or abandoned by clear and specific statutory provision or decision of the High Court.

Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978), 38 FLR 397, applied.

(2) That principle applied to an acquittal of a charge of criminal contempt after a hearing on the merits by a single judge of the court or by the Supreme Court of a Territory.

R. v. Fletcher; Ex parte Kisch (1934), 52 CLR 234; Izuora v. The Queen, (1953) AC 327; Shamdasani v. King-Emperor, (1945) AC 264, applied.

(3) The appellant could not challenge the respondents' acquittals by appealing against the trial judge's failure to grant injunctive relief against the respondents as the acquittals had resolved the claims for that relief.

(4) Objections to competency upheld.

HEARING

Sydney, 1982, March 18; April 6. #DATE 6:4:1982

OBJECTION TO COMPETENCY.

The respondent in each matter by notice of motion objected to the competency of an appeal brought from a single judge of the Federal Court.

R. Merkel and S. Marshall, for the appellant.

J. Sher Q.C. and A.G. Uren, for the respondent in each matter.

Cur. adv. vult.

Solicitors for the appellant: Holding, Redlich & Co.

Solicitors for David Syme & Co. Ltd.: Gillots.

Solicitors for Herald & Weekly Times Ltd.: Corr & Corr.

T.J. GINNANE

ORDER

1. THE appeal instituted by notice of appeal dated 23 December, 1981 be dismissed as incompetent except to the extent that it challenges, in ground 10, the order for costs made at first instance.

2. THE costs of the motion be reserved.

JUDGE1

Contempt of court has traditionally been divided into criminal contempt and civil contempt. In essence, the distinction between the two is that criminal contempt ordinarily consists of a wrongful interference with the due administration of justice while civil contempt ordinarily consists of a refusal or failure to comply with a specific order or direction of, or undertaking given to, a court. The dividing line between the two forms of contempt is, in some cases, unclear (see Miller, Contempt of Court (1976), p.17).

The functions which the two forms of contempt serve tend to overlap. Criminal contempt primarily exists to protect the due administration of justice in the public interest while civil contempt primarily exists to make the administration of justice effective for the individual litigant. There is, however, a public element in civil contempt since the administration of justice would be undermined if a specific order or direction of, or undertaking given to, a court of law could be disregarded with impunity (see, per Lord Diplock, Attorney-General v. Times Newspapers Ltd. (1974) A.C. 273 at p. 308). While the primary function of criminal contempt is to serve the public interest, a private litigant may press a charge of criminal contempt against one whom he alleges has wrongfully interfered with the due administration of justice in his particular case. Thus, in the present matters, the Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation") brought proceedings, by way of motion on notice, alleging that each respondent company had, by publishing and distributing certain material in a particular issue of a newspaper which it publishes, been guilty of a criminal contempt in that it had wrongfully interfered with the due administration of justice in deregistration proceedings under s.143 of the Conciliation and Arbitration Act, 1904 which are pending in this Court against the Federation.

In the first matter, the Federation sought orders punishing David Syme & Co. Ltd. for an alleged contempt constituted by publication and distribution of an editorial entitled "Industrial Outlaw" in an issue of "The Age" newspaper dated 25 September, 1981. In the second matter, the Federation sought orders punishing The Herald & Weekly Times Ltd. for an alleged contempt constituted by publication and distribution of certain editorial matter in issues of the Melbourne "Herald" newspaper dated 25 September, 1981 and 29 September, 1981. The two motions were heard together by Northrop J. who found that neither company had been guilty of contempt of court in publishing and distributing the relevant material. His Honour also concluded that, in each case, injunctive relief which had been sought in respect of future publication of material should be refused. He made orders refusing the motion in each proceeding and that the Federation pay the relevant company's costs.

The Federation has filed a notice of appeal to this Court in each matter. In each case, the notice of appeal claims that Northrop J. was in error in that he should have punished the relevant company, granted injunctive relief and made no order as to costs. Presently before the Court are motions by each of the two companies ("the companies") seeking an order that the relevant appeal be dismissed as incompetent. Upon the hearing of these motions, which have been heard together, it has been conceded on behalf of the companies that an appeal lies, at the behest of the Federation, on the question whether Northrop J. was precluded by s.197A of the Conciliation and Arbitration Act, 1904 from making the orders for costs which he made. The dispute between the parties, as to competence of the appeals, concerns whether an appeal lies from his Honour's finding that neither company was guilty of contempt of court or from his refusal to grant injunctive relief. If the companies are fully successful on that dispute as to competence, all that will remain to be dealt with on the appeals will be the question whether his Honour was precluded from making the order for costs which he made. In these circumstances, it is plainly desirable that we consider and determine the issue as to competence presently before us rather than leave it to be determined on the subsequent hearing of the appeal. What is involved in that issue can be shortly stated. It is whether, in the light of the established principle of the common law that no appeal lies from an acquittal in criminal proceedings after a hearing on the merits, the relevant statutory provisions conferring appellate jurisdiction upon this Court confer, upon their proper construction, jurisdiction to entertain and determine an appeal from Northrop J's decision that the companies had not been guilty of contempt of court or from his refusal to grant injunctive relief.

Section 24 of the Federal Court of Australia Act, 1976 ("the Act") confers jurisdiction upon a Full Court of this Court to hear and determine appeals from judgments of the Court constituted by a single Judge. In Thompson v. Mastertouch TV Services Pty. Ltd. ((1978) 19 A.L.R. 547), a Full Court of the Court held that, upon the proper construction of the general provisions of s.24(1)(a) in the light of the principle to which reference has been made, they conferred neither authority upon an appellant to institute, nor jurisdiction upon the Court to hear, an appeal from an acquittal pronounced in criminal proceedings after a hearing on the merits. The decision in that case has consistently been followed and applied in this Court (see, for example, Burgess v. John Connell-Mott, Hay and Anderson Pty. Ltd. (1979) 25 A.L.R. 467; Wood v. City of Melbourne Corporation (1979) 26 A.L.R. 449; Gapes v. Commercial Bank of Australia Limited (1979) 27 A.L.R. 87; Duff v. The Queen (1979) 28 A.L.R. 663 at p. 670). The correctness of the decision in Thompson v. Mastertouch (supra) was challenged in argument in the High Court in Henderson v. Pioneer Homes Pty. Ltd. ((1979) 27 A.L.R. 229) but the majority of their Honours considered it unnecessary to embark on a consideration of that submission. It is, however, relevant to mention that, in Henderson v. Pioneer Homes (supra), Murphy J. (ibid, at p. 233) referred to the principle underlying the decision in Thompson v. Mastertouch (supra) as an "essential principle of interpretation" and that Aickin J. (in dissent) appears to have assumed that the decision in Thompson v. Mastertouch (supra) was correct.

It was submitted, on behalf of the Federation, that this Court should re-consider the correctness of the decision in Thompson v. Mastertouch (supra) and decline to follow it. We are quite unpersuaded that there is any valid ground for adopting that course. In particular, we do not accept the suggestion made on behalf of the Federation that the decision in Thompson v. Mastertouch (supra) should be regarded as open to question because no express mention was made in the judgments in that case of Collins v. Charles Marshall Pty. Ltd. ((1955) 92 C.L.R. 529) or Cockle v. Isaksen ((1957) 99 C.L.R. 155) which were cases in which the High Court was concerned with rights of appeal from a dismissal of informations alleging offences against industrial legislation and in which no reference was made to the principle accepted and applied in Thompson v. Mastertouch (supra). The failure to advert, in those two cases, to that principle cannot, in the context of the authorities referred to in Thompson v. Mastertouch (supra), properly be seen as a basis for undermining or denying it. In our view, the general principle which was applied in Thompson v. Mastertouch (supra) is a fundamental principle of the common law which should continue to be recognized and applied in this Court except to the extent that it is modified or abandoned by clear and specific statutory provision or decision of the High Court.

It was next submitted, on behalf of the Federation, that a charge of criminal contempt was sui generis and the common law principle against double jeopardy should not properly be seen as extending to an acquittal in proceedings for criminal contempt. Reliance was placed upon In re Wray ((1887) 36 Ch.D. 138 at pp. 144-5); Hunt v. Clarke (1889) 58 L.J. Q.B. 490; 61 L.T. 343) and Re: Johnson ((1886) 20 Q.B.D. 68). In each of those cases, the U.K. Court of Appeal dealt with an appeal from a decision in proceedings for criminal contempt notwithstanding s.47 of the Judicature Act (U.K.)., 1873 which excluded appeals "in a criminal cause or matter" from the jurisdiction of the Court of Appeal. The question whether there was jurisdiction to entertain the appeal was, however, simply not raised in those cases in which the appeal was, in any event, dismissed. That question was expressly considered by the Court of Appeal in O'Shea v. O'Shea and Parnell ((1890) 15 P.D. 59) which was a purported appeal from an order that a writ of attachment issue in respect of a criminal contempt. In the course of his judgment, Lindley L.J. said (ibid, at p.64):
"The offence of the appellant is certainly a criminal offence. I do not say that it is an indictable offence, but, whether indictable or not, it is a criminal offence, and it is an offence, and the only offence that I know of, which is punishable at common law by summary process. As regards the authorities, no case has been cited which conflicts with the view which we take on this appeal. In Reg. v. Jordan (36 W.R. 797) the Court did not take the point now raised, and the parties did not wish it to be raised. But, after the appeal had been heard and judgment given, the point occurred to me, and I said I was not satisfied that we had any jurisdiction to hear the appeal. I am now satisfied that we had no jurisdiction to hear it".
To the same effect were the following comments of Lopes L.J., (ibid, at p. 65):
"There are different kinds of attachment for contempt. One kind of attachment is to enforce obedience to an order made in a civil action or proceeding, against one of the parties, in respect of something the doing or not doing of which is not a criminal act. That would not be an order in a "criminal cause or matter" within s.47. The case of Reg. v. Barnardo (23 Q.B.D. 305) is an example of that kind. But there is another kind of attachment which is the subject of an independent application against a person who is not a party to the suit in respect of an act done outside the suit, and which act is criminal. That, I think, is within the words of s.47. The application on which the present order was made was an application by the petitioner in the divorce action, in reference to an attempt made by a stranger to the suit to interfere with the administration of justice in the action, but it is made outside the action. The object of the application was to obtain the punishment of the appellant, and the proceeding ended with the order against him. I am clearly of opinion that this order was made in a criminal matter".

It is true that proceedings for criminal contempt are, in some respects, sui generis. They are, nonetheless, plainly "criminal in character" (see, per Evatt J., The King v. Fletcher; Ex parte Kisch (1934) 52 C.L.R. 234 at p. 258). A finding of guilt of criminal contempt is a "conviction" (see, Izuora v. The Queen (1953) A.C. 327 at pp. 334-335) of an "offence" (see Shamadasani v. King-Emperor (1945) A.C. 264 at p. 270: "so grave an offence as contempt of court"). In In re James W. Thompson ((1893) 19 V.L.R. 286), the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ.) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were "a criminal matter, and therefore there is no appeal to this Court". Their Honours commented that the purported appeal was "virtually an appeal from a punishment inflicted by a Judge presiding in the criminal court for a criminal offence" (see, also, the equally strong comments of Cussen J. in In re Dunn (1906) V.L.R. 493 at pp. 501-502). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge. Prima facie, the effect of the decision in Thompson v. Mastertouch (supra) is that the general provisions of s.24 of the Act should not be construed as conferring, upon this Court, jurisdiction to hear and determine an appeal from a judgment of acquittal of a charge of criminal contempt after a hearing on the merits by a single Judge of this Court or by the Supreme Court of a Territory.

It is plain that Northrop J's finding that neither company in the present case had been guilty of contempt of court constituted an acquittal after a hearing on the merits. Indeed, the contrary was not suggested on behalf of the Federation. Two further arguments were, however, advanced in support of the competence of the Federation's purported appeals against Northrop J's findings of no contempt and refusals of injunctive relief.

First, it was submitted that the fact that the express power to punish contempt is conferred upon the Federal Court by s.31 of the Act should lead the Court to conclude that the appellate jurisdiction conferred by s.24(1)(a) applied in relation to contempt proceedings under s.31 regardless of whether they were civil or criminal or of whether, if criminal, they resulted in an acquittal. We can see no substance in this submission. Section 31 of the Act has nothing to say on the question of appeal. The mere fact that statutory provisions conferring general power to punish contempt are to be found in the Act affords no basis for modifying the exclusion of appeals from verdicts of acquittal in criminal proceedings from the unspecific general grant of appellate jurisdiction contained in s.24(1)(a) of the Act.

Second, the Federation advanced an argument based on the fact that it had sought injunctive relief against each company in respect of future publication of material. Such injunctive relief could, so it was said, be granted on a quia timet basis in civil proceedings (see, Kitcat v. Sharp (1882) 52 L.J. Ch. 134, 48 L.T. 64; Mackett v. The Commissioners of Herne Bay (1876) 24 W.R. 845; Re Isles (1968) V.R. 628; Critchley v. Australian Urban Investments Ltd. (1979) V.R. 374 at p. 380). It followed, so the argument proceeded, that the proceedings in so far as they related to a claim for injunctive relief were civil in character. Consequently, an appeal lay from his Honour's refusals to grant injunctive relief. Moreover, the actions of publishing and distributing which were alleged to constitute criminal contempt were, in each case, said to be inextricably interwoven with the claim for injunctive relief. The consequence of this was argued to be that, in reviewing his Honour's refusal to grant injunctive relief as to future publication, the Court could review the correctness of his Honour's conclusion that the publications and distributions did not constitute criminal contempt of court.

In the view we take, it would be quite wrong to require a person, who is answering a charge of criminal contempt and entitled to invoke the principle that guilt should be proved beyond reasonable doubt, to deal at the same time with an associated claim for civil relief which falls to be determined by reference to civil standards of proof. The only basis upon which a claim for final (as distinct from interlocutory) injunctive relief can properly be presented or dealt with in the same proceeding as a substantive charge of criminal contempt is that the claim for injunctive relief is properly to be regarded as ancillary to the substantive criminal proceedings. Examination of the notices of motion in the present matters and of those parts of the transcript of proceedings before Northrop J. to which our attention has been directed makes it clear that the charge of criminal contempt was, in each matter, propounded as the basis of the proceeding and that the claim for injunctive relief was advanced either as, in itself, constituting a form of punishment or as being appropriate ancillary relief if the charge of contempt was made out: if it had not been so advanced, it should have been struck out. In these circumstances, the charge of criminal contempt dominated and determined the character of each proceeding. The acquittal of the criminal charge effectively resolved the claim, in that proceeding, for injunctive relief. The Federation cannot be heard, upon an appeal from the proceedings in which that acquittal was pronounced, to challenge the acquittal under the guise of attacking Northrop J's refusal to grant injunctive relief. It is unnecessary to consider whether the position would be different if the proceedings seeking injunctive relief had been separate and independent (cf. Helton v. Allen (1940) 63 C.L.R. 691 at pp. 709-710).

In the result, we are of the view that the objection to the competence of each appeal should be upheld in so far as it is sought to reverse the acquittal of the charge of criminal contempt or the refusal of injunctive relief. The effect of this is that the only question which will remain to be determined on the hearing of each appeal is the question whether Northrop J. was precluded by the provisions of s.197A of the Conciliation and Arbitration Act, 1904 from making the order for costs which he made.

There remains for consideration the question of the costs of the two motions presently before the Court. Each of the companies has succeeded on its motion. Ordinarily, we would make an order that the Federation pay the companies' costs of the motions. The question of costs which remains to be determined in the appeals will, however, be relevant to the power of this Court to make such an order for costs in respect of the present motions. That question has not been debated before us. In the circumstances, we consider that the appropriate approach is to reserve the costs of each motion for the decision of the Court which ultimately deals with the appeals.