Concrete Constructions Pty Ltd v The Plumbers & Gasfitter

Re: CONCRETE CONSTRUCTIONS PTY LIMITED; CONCRETE CONSTRUCTIONS (NSW) PTY
LIMITED; SABEMO PTY LIMITED; LEIGHTON CONTRACTORS PTY LIMITED; CIVIL & CIVIC
PTY LIMITED; WHITE INDUSTRIES LIMITED; JENNINGS CONSTRUCTION LIMITED; BARCLAY
BROS PTY LIMITED and JOHN HOLLAND CONSTRUCTIONS PTY LIMITED
And: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA; GLEN
BATCHELOR; ROLAND ROBSON; ALEXANDER SOMERVILLE; DONALD CAMPBELL and PAUL
WAKEHAM
Nos. NSW G51; G54; G55; G57-G60; G64 of 1987
Contempt of Court

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Contempt of Court - Alleged disobedience to interlocutory orders not to maintain work bans - Sufficiency of statements of charge - No action taken by respondent to notify that it did not maintain bans - Whether such action was required by orders - Whether certain positive acts of respondent constituted breach of the orders - Appropriate standard of proof - Appropriate orders to be made: fines including daily fines for any continuing breaches and suspended writ of sequestration - Whether applicants should have costs on solicitor/client basis.

Trade Practices Act 1974, s.75B

Federal Court Rules, 0.20 r.2, O.33 r.2, 0.40 rr.5, 6, 7, 8

HEARING

SYDNEY

#DATE 6:4:1987

In matters NSW G.51 and G.64 of 1987

Counsel for the Applicants: Mr A.B. Shand Q.C. with Mr D. Cowdroy

Solicitors for the Applicants: Westgarth Baldick

Counsel for the Respondent: Mr R. Kenzie Q.C. with Mr M. Moore, Mr S. Marshall and Mr M. Kimber

Solicitors for the Respondent: R.L. Whyburn & Associates

In matters NSW G.54 and G.55 of 1987

Counsel for the Applicants: Mr M.H. Tobias Q.C. with Mr J.L. Trew Q.C., Mr M F Holmes and Mr N Street

Solicitors for the Applicants: Allen Allen and Hemsley

Counsel for the Respondent: Mr R. Kenzie Q.C. with Mr M. Moore, Mr S. Marshall and Mr M. Kimber

Solicitors for the Respondent: R.L. Whyburn & Associates

In matters NSW G.57 and G.58 of 1987

Counsel for the Applicants: Mr M.H.Tobias Q.C. with Mr J.L. Trew Q.C., Mr A. Ashburner and Mr J.D. Heydon

Solicitors for the Applicants: Freehill, Hollingdale & Page

Counsel for the Respondent: Mr R. Kenzie Q.C. with Mr M. Moore, Mr S. Marshall and Mr M. Kimber

Solicitors for the Respondent: R.L. Whyburn & Associates

In matters NSW G.59 and 60 of 1987

Counsel for the Applicants: Mr M.H. Tobias Q.C. with Mr J.L Trew Q.C., Mr B. Camilleri

Solicitors for the Applicants: Colin Biggers & Paisley

Counsel for the Respondent: Mr R. Kenzie Q.C. with Mr M. Moore, Mr S. Marshall and Mr M. Kimber

Solicitors for the Respondent: R.L. Whyburn & Associates

ORDER

No. NSW G51 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicants have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in order 1 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicants their costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein CONCRETE CONSTRUCTIONS PTY LIMITED & ANOR were the applicants and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Pty Limited, Wormald International (Australia) Pty Limited or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant known as Grosvenor Place, at corner George and Grosvenor Streets, Sydney.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said order AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of that breach and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues and further ordered that such fine of Twenty thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fine of Ten thousand dollars ($10,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

No. NSW G54 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicant have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in order 1 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicants their costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein SABEMO PTY LIMITED was the applicant and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited, J.M. Hargreaves & Son Pty Limited or Bernard Hastie (N.S.W.) Pty Limited to or for the building being constructed by the applicant at 473 Victoria Avenue, Chatswood.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said order AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of that breach and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues and further ordered that such fine of Twenty thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fine of Ten thousand dollars ($10,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

No. NSW G55 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 1; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 2 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 2; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 3 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 3; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 4 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 4; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicant have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in orders 1, 2, 3 and 4 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicant its costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein LEIGHTON CONTRACTORS PTY LIMITED was the applicant and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney (Contracting) Pty Limited, Impact Air Pty Limited or Fire Protection Pty Limited to or for the building being constructed by the applicant at 127 Walker Street, North Sydney.

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court. from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Crawford and Samuel Pty Limited, Impact Air Pty Limited and Tayo Pty Limited to or for the building being constructed by the applicant at 56-70 Phillip Street, Sydney.

The first respondent, its servants and agents, and

the second respondent by restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited, Wormald International (Australia) Pty Limited or J.M. Hargreaves & Son Pty Limited to or for the building being constructed by the applicant at corner Barrack and York Streets, Sydney.

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Bruce & Sowter Pty Limited or O'Donnel Griffin (a division of ANI Corporation) to or for the building being constructed by the applicant known as Telecom Plaza at 314-322 Pitt Street, Sydney.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said orders AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of each of those four breaches and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) in respect of each breach so long as the said breach continues and further order that such fines of thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fines of Ten thousand dollars ($10,000) if and when incurred each be paid to the Registrar within forty-eight (48) hours of their being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

No. NSW G57 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

(a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 1; and

(b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 2 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 2; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 3 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 3; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 4 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order 4; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicant have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in orders 1, 2, 3 and 4 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicant its costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein CIVIL & CIVIC PTY LIMITED was the applicant and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International

(Australia) Pty Limited, Brown & Moodie Pty Limited or Randwick Pluming Pty Limited to or for the building being constructed by the applicant known as AMP Tower 2 at Bondi Junction.

The first respondent, its servants and agents, and

the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Environ Mechanical Services Pty Limited, Impact Air Pty Limited or Crawford and Samuel Pty Limited to or for the building being constructed by the applicant known as the Zenith building at Chatswood.

The first respondent, its servants and agents, and

the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney

(Contracting) Pty Limited, Thos. Clark & Son Pty Limited or Guardian Fire Protection Company to or for the building being constructed by the applicant known as the OTC building at Elizabeth Street, Sydney.

The first respondent, its servants and agents, and

the second, third and fourth respondents and each of them be restrained, pending further order of the Court. from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R. Keith Pty Limited or Environ Mechanical Services Pty Limited to or for the building being constructed by the applicant known as the MBF building at Bathurst Street, Sydney.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said orders AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of each of those four breaches and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) in respect of each breach so long as the said breach continues and further order that such fines of thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fines of Ten thousand dollars ($10,000) if and when incurred each be paid to the Registrar within forty-eight (48) hours of their being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

No. NSW G58 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicant have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in order 1 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicants their costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein WHITE INDUSTRIES LIMITED were the applicants and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by David J. Morris Contracting Pty Limited, Matthew Hall Mechanical & Electrical Engineers Pty Limited or or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant at Victoria Cross, North Sydney.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said order AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of that breach and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues and further ordered that such fine of Twenty thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fine of Ten thousand dollars ($10,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

No. NSW G59 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicant have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in order 1 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicants their costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein JENNINGS CONSTRUCTION LIMITED was the applicant and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International

(Australia) Pty Limited or Absolir Pty Limited to or for the building being constructed by the applicant at 130 Pitt Street, Sydney.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said order AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of that breach and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues and further ordered that such fine of Twenty thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fine of Ten thousand dollars ($10,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

No. NSW G60 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicant have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in order 1 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicants their costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein BARCLAY BROS PTY LIMITED was the applicant and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R. Keith Pty Pty Limited or Tyao Pty Limited to or for the building being constructed by the applicant at 1 Pacific Highway, North Sydney.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said order AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of that breach and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues and further ordered that such fine of Twenty thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fine of Ten thousand dollars ($10,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

No. NSW G64 of 1987

The Notice of Motion filed by the first respondent, the Plumbers and Gasfitters Employees' Union of Australia, on 27 March 1987 be dismissed.

The said respondent be adjudged to be guilty of contempt of court in respect of its breach of order 1 made on 13 March 1987.

The said respondent pay to the Registrar of this Court:

a) on or before 10 April 1987 a fine of Twenty thousand dollars ($20,000) in respect of the breach of the said order; and

b) within 48 hours of any such daily fine being incurred a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues.

The applicant have leave to issue a writ of sequestration against the said respondent in accordance with the form set forth in the Schedule hereto provided however that such writ shall lie in the Registry and not be executed until 13 April 1987 or such other date as the Court may on application direct and provided further that the issue and execution of the said writ shall be permanently stayed if, before 13 April or such later date as the Court may direct, the said respondent shall, upon application, satisfy the Court:

a) that it no longer, whether by itself, its servants or its agents, maintains, gives effect to or enforces any ban referred to in order 1 made on 13 March 1987; and

b) that all fines which have been incurred hereunder have been paid.

Liberty to any party to apply upon such notice as the Court may direct.

The said respondent pay to the applicants their costs of the Notice of Motion for punishment for contempt, such costs to be taxed upon a solicitor and own client basis, other than any costs occasioned by the amendment to the said Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. See also Order 37 rule 2(3).

WRIT OF SEQUESTRATION

Elizabeth the Second by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth

TO ANTHONY GARDINER SHERLOCK of Coopers & Lybrand, 6 O'Connell Street, Sydney.

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square, Sydney.

JOHN BERESFORD HARKNESS of K.M.G. Hungerfords, 167 Macquarie Street, Sydney.

MAX CHRISTOPHER DONNELLY of 55 York Street, Sydney.

GREETINGS

WHEREAS in our Federal Court of Australia, New South Wales District Registry, General Division in a certain proceeding there pending wherein JOHN HOLLAND CONSTRUCTIONS PTY LIMITED was the applicant and the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA was the First Respondent

AND WHEREAS on 13 March 1987 at Sydney in the State of New South Wales the Honourable Murray Rutledge Wilcox, a Judge of that Court made, inter alia, the following order:

The first respondent, its servants and agents, and

the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by G.J. Melis Pty Limited, Wormald International (Australia) Pty Limited or Wildridge & Sinclair Pty Limited to or for the building being constructed by the applicant at 33 Railway Crescent, Burwood.

AND WHEREAS on 3 April 1987 the First Respondent was adjudged by the Honourable Murray Rutledge Wilcox guilty of contempt in that it was in breach of the terms of the said order AND WHEREAS His Honour ordered that the PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA be fined Twenty thousand dollars ($20,000) in respect of that breach and a further fine of Ten thousand dollars ($10,000) per day (excluding Monday 6 April 1987 and any Saturday or Sunday) so long as the said breach continues and further ordered that such fine of Twenty thousand dollars ($20,000) be paid to the Registrar of the Court on or before 10 April 1987 and further ordered that such daily fine of Ten thousand dollars ($10,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred

AND WHEREAS on 3 April 1987 the Honourable Murray Rutledge Wilcox further ordered that the Applicants have leave to issue this Writ of Sequestration

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorise and command you or any three or two of you to enter upon the messuages, lands, tenements and real estate whatsoever of the said PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (hereinafter called "the P.G.E.U.") and of any branch thereof and to take possession of all the real and personal estate of the P.G.E.U. and to collect, receive and get into your hands the rents, profits, interest and issues of its real estate and personal estate and to keep same under sequestration in your hands and thereafter we command you or any three or two of you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the P.G.E.U. and of any branch thereof and that you do collect, take and get into your hands not only the rents, profits, interest and issues of the said real and personal estate but also all its goods, chattels and personal estate and detail and keep the same under sequestration in your hands until this Court makes order to the contrary

AND FURTHER NOTE that we authorise and command you to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines imposed on the P.G.E.U. by the said orders of 3 April 1987 which shall remain unpaid until the same are fully discharged

AND FURTHER NOTE that we order that the costs and expenses of executing this writ as sequestrators be taxed and after the said fines have been paid in full be paid out of the proceeds and moneys in your hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and FURTHER NOTE that this writ shall operate until this Court makes order to the contrary.

JUDGE1

The present applications

There are before the Court amended Notices of Motion seeking the punishment for contempt of court of the Plumbers and Gasfitters Employees' Union of Australia (the "PGEU"). These applications are made in each of eight separate proceedings, each instituted by one or more companies engaged in the building construction industry. It is alleged in each case that the PGEU is in contempt of interlocutory orders made by me on Friday 13 March 1987.

It is not necessary to set out in these reasons each of the relevant orders. I illustrate their nature by quoting orders 1, 2 and 3 made in matter NSW G.51 of 1987, the proceedings instituted by Concrete Constructions Pty Limited and Concrete Constructions (NSW) Pty Limited:

"1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Pty Limited, Wormald International (Australia) Pty Limited or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant known as Grosvenor Place, at corner George and Grosvenor Streets, Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

The orders made in each of the other matters followed the same form, with the substitution of the names of the relevant plumbing sub-contractors at each particular site and the substitution of the appropriate address. In two cases -- matters NSW G.55 and NSW G.57 of 1987, in which Leighton Contractors Pty Limited and Civil & Civic Pty Limited were the respective applicants -- bans were operative at four separate sites. Consequently, in each of those matters I made separate orders -- in the form of order 1 above -- in relation to each site. In each case orders 2 and 3 -- renumbered in the cases of Leighton and Civil & Civic -- were identical to orders 2 and 3 in the Concrete Constructions matter.

The present proceedings were instituted by Notices of Motion, filed in each of the eight matters on 18 or 19 March 1987. In each case the Notice of Motion, as amended pursuant to leave, seeks orders that the PGEU show cause why it should not be punished for contempt of court and, in particular, why fines or imprisonment or other penalties should not be imposed upon it as a punishment for contempt and as a deterrent of future conduct. In six of the eight cases the catalogue of possible penalties expressly specified in the amended Notice of Motion includes sequestration of the assets of the union. Although, in each case, there were one or more individual respondents against whom orders 1 and 2 were directed, the present proceedings do not involve any of those individuals. I shall use the term "the respondent" in these reasons to refer to the PGEU alone.
In each case the present proceedings are concerned with the enforcement only of the orders framed in negative terms on 13 March; that is, taking the Concrete Constructions orders as an example, orders 1 and 2. Pursuant to an application made to him by the PGEU, on 20 March 1987 Wilson J, in the High Court of Australia, granted an order nisi for prohibition and certiorari, and a stay of proceedings, in relation to the order made in each matter -- order 3 in the case of Concrete Constructions -- for delivery of letters to each of the sub-contractors by noon on 17 March 1987.

The statements of charge
Order 40 r.5 of the Federal Court Rules provides that, in a case where it is alleged that a contempt has been committed in connection with a proceeding in the Court -- not being contempt in the face of the Court, as to which see O.40 rr.1-3 -- an application for punishment for the alleged contempt must be made by motion on notice in the proceeding. Order 40 r.6 provides:

"A statement of charge, that is, a statement specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application."

Rule 7 of O.40 makes provision for the use of affidavit evidence in support of a charge of contempt. Rule 8 requires the Notice of Motion, the statement of charge and the affidavits to be served personally on the accused person.
As I have indicated, each of the present applicants has proceeded by way of Notice of Motion, as required by O.40 r.5. I am satisfied that service has been effected in accordance with the rules and with the directions made by me from time to time. The respondent does not suggest to the contrary. In each case a "statement of charge" is included in the Notice of Motion, as permitted by r.6. The form varies a little between the various Notices of Motion. In each case the amended Notice of Motion recites the orders in respect of which complaint is made, the fact that the respondent was represented in court by counsel when the orders were made on 13 March 1987, and the fact of service of a sealed copy of the orders on 16 March 1987. (There is evidence as to the latter two matters; and, once again, the contrary is not contended.) In each case the amended Notice of Motion goes on to set out the charge with particulars thereof. Excluding its reference to order 3, the form of the charge in the Concrete Constructions matter is as follows:

"At the date of the filing of this Notice of Motion the First Respondent has:-

(i) Continued to maintain, give effect to and enforce bans on the provision of goods or services by Matthew Hall Pty. Limited, Wormald International (Australia) Pty. Limited or Nisbet & Durney (Contracting) Pty. Limited to or for the building being constructed by the Applicant known as Grosvenor Place.

(ii) (a) aided, abetted, counselled and/or procured a person or persons to engage in the conduct referred to in

(i) hereof

(b) induced or attempted to induce a person or persons by threat, promise or otherwise to engage in the conduct referred to in (i) hereof;

(c) directly or indirectly been knowingly concerned or party to an agreement to carry out the conduct referred to in (i) hereof;

(d) conspired with a person or persons to engage in the conduct referred to in (i) hereof.

PARTICULARS OF CHARGE

The employees listed below have refused to return to their duties for the reason that the First Respondent has:

(a) refused to inform such undermentioned employees that the bans and/or work limitations at the building known as Grosvenor Place, at corner George and Grosvenor Streets, Sydney have been lifted.

(b) Refused to give permission to such employees to resume their duties and to undertake the work which was the subject of the bans and work limitations found by His Honour Mr. Justice Wilcox to have been in force as at 13th March, 1987.

(c) Informed certain of such employees that no work which is the subject of bans and/or work limitations at the Grosvenor Place site may be performed until a meeting of the First Respondent is held and a resolution adopted to lift such bans and/or work limitations at the said site.

The employees hereinbefore referred to:-"

Here follows a list of 13 names.

The statement of charge in the proceedings commenced by John Holland Constructions Pty Limited is in an identical form, substituting only appropriate names of sub-contractors and employees and a different site address.
In the remaining cases the allegations in the statement of charge have been broken up. The statement of charge in the proceedings by Sabemo Pty Limited, after alleging representation in court when the orders were made and service of the sealed orders, goes on, in para.1, to allege that the PGEU "maintained" after 13 March 1987 the bans imposed before that date on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited to or for the building being constructed by the applicant at 127 Walker Street, North Sydney. Particulars are set out, as follow:

"(i) The First Respondent failed to take any effective steps to inform its members that the bans were lifted in circumstances where such failure was likely to and did communicate that the bans were to be maintained.

(ii) The First respondent failed to inform its members that the First Respondent would not take any adverse action against those members who performed work previously the subject of the bans.

(iii) The First Respondent communicated to certain members of the First Respondent who were employed by sub-contractors to the Applicant including Matthew Hall Mechanical and Electrical Engineering Pty. Limited that the bans were to be maintained or that there was no change in the situation.

(iv) The First Respondent evaded efforts made by or on behalf of the Applicant and by or on behalf of certain employees of sub-contractors to the Applicant to ascertain from the First Respondent whether the bans were being maintained.

(v) The First Respondent encouraged the continuance of the bans by its members including employees of Matthew Hall Mechanical and Electrical Engineering Pty. Limited on the site by public statements on radio and television and in particular in interviews with the press published on ATN Channel 7 Sydney, on Wednesday 18 March, ABC Channel 2 Sydney on Wednesday 18 March, TCN Channel 9 Sydney on Wednesday 18 March, ABC Radio on Wednesday 18 March, ABC Radio on Friday 20 March, Sydney Morning Herald on Wednesday 18 March 1987 and The Australian on Wednesday 18 March 1987.

(vi) The First Respondent failed to take any effective steps to have the bans removed including failing to propose or have passed at a meeting or meetings of members of the First Respondent a resolution removing the bans and failing to propose or have passed at a meeting of the Committee of Management a resolution removing the bans or calling for or recommending their removal.

(vii) The First Respondent by its servant or agent Peter Lane on or about 17 March 1987 addressed a meeting of approximately 20 members of the First Respondent and made statements to the effect that the bans could not be lifted until further mass meetings of members of the First Respondent were held and that no union member who had been suspended in New South Wales could return to the site he was suspended on until that return to work was endorsed by a mass meeting.

(viii) The First Respondent, by its servant or agent Mr. Alan Morris, visited the building site at 473 Victoria Avenue, Chatswood on Tuesday 17 March 1987 for the purposes of checking to see that the bans had not been broken.

(ix) The conduct of the First Respondent described in the evidence before this Honourable Court in the Application for Interlocutory Relief, in the Affidavits filed in support of the Notice of Motion for orders for contempt of Court in these proceedings and in the material produced in response to the subpoenae on Monday 23 March 1987."

Paragraph 2 alleges that the PGEU "gave effect to" the bans after 13 March, the particulars being repeated. Paragraph 3 alleges that the PGEU aided, abetted, counselled or procured the maintenance of the bans on Matthew Hall Mechanical and Electrical Engineering and para.4 alleges that the union aided, abetted, counselled or procured the giving effect to of those bans. In each paragraph the earlier particulars are repeated.
Paragraphs 5 to 8 repeat this same pattern, simply substituting for Matthew Hall Mechanical and Electrical Engineering a reference to another plumbing sub-contractor at this site, J.M. Hargreaves & Son Pty Limited. In each paragraph the particulars given in respect of para.1 are repeated. Paragraphs 9 to 12 take the same course; the sub-contractor referred to in these paragraphs being Bernard Hastie (NSW) Pty Limited.
The wording of the Leighton charge is identical, with appropriate substitutions of names and addresses. However, as orders were made in respect of four Leighton sites, the charge goes on to repeat this cycle for each of the four sites.
The statements of charge made on behalf of Civil & Civic and White Industries are mutually identical; with appropriate substitutions of names and addresses and allowing for the fact that the Civil & Civic charge repeats the series of allegations in respect of each of four sites. The format and the particulars are very similar to those adopted for Sabemo and Leighton.
The statements of charge in the proceedings by Barclay Bros Pty Limited and Jennings Construction Limited are also mutually consistent. They follow the same scheme as the others, save that in each matter separate Notices of Motion have been used in connection with each sub-contractor.

Validity of the statements of charge
The respondent contends that in no case does the purported statement of charge answer the requirement of O.40 r.6; that is, it does not amount to "a statement specifying the contempt of which the accused person is alleged to be guilty". It follows, say counsel for the respondent, that the present proceedings fail for want of compliance with the requirements of r.6. And, for more abundant precaution, the respondent applies under O.20 r.2 of the Federal Court Rules, in each case, to dismiss the amended Notice of Motion "on the basis that it

"1) discloses no reasonable cause of action;

2) is frivolous and vexatious, and

3) is an abuse of the process of the Court."

The nature of the statement of charge required in contempt proceedings has been discussed in numerous authorities; but it is sufficient for me to refer to two recent decisions which refer to the relevant principles.
In Australian Building Construction Employees' and Builders Labourers' Federation v. Minister of State for Industrial Relations (1982) 43 ALR 189 a Full Court of this Court was concerned with contempt proceedings against a union and certain of its officials in which it was alleged that they had dissuaded certain people from giving evidence against the union in certain deregistration proceedings then before the Court. In considering the sufficiency of the statement of charge Smithers J. at p.191 said:

"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 CLR 573 at 579-80:-

'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 distinctly stated and an opportunity of answering it given to him: Re Pollard (1868) LR 2 PC 106, at 120; R v. Foster; Ex parte Isaacs (1941) VLR 77 at 81. 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) AC 312, at 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 ...'."

At pp.208-209 Evatt and Deane JJ. spoke to the same effect, observing that the principle referred to in Re Pollard and Coward v. Stapleton finds expression in O.40 rr.6 and 8 of the Federal Court Rules.

'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.'"

It is, of course, essential to the admissibility of the tendered statement that the person's physical condition or state of mind is either directly in issue, or is of direct and immediate relevance to an issue, at the trial: see Regina v. Blastland (1986) 1 AC 41 at p.54. This condition is satisfied in the present case, in relation to the statements made by the various union members as to their willingness to work. The fact is that, after 13 March, the members did not return to carry out banned work. A question, relevant to the issue whether the union was in contempt of the orders then made, arises as to their reasons. Was this because, independently of any attitude by the union officials or the union membership as a whole, they were individually, or as members only of that group of union members who were employed by a particular employer on a particular site, unwilling to do the work? Or was it because they regarded themselves as constrained by a continuing attitude of the union? If the evidence establishes that numerous individual employees had the latter state of mind that evidence may found an inference that the union was continuing to influence the members to maintain the bans.
Counsel for the applicant submit that the evidence should be admitted more broadly, as proof of the facts stated by the employee respondents. This submission is put on alternative grounds. First, it is said that the evidence is admissible as res gestae, an exception to the hearsay rule. They refer to Regina v. Andrews (1987) 2 WLR 413. But, as that case makes clear, the res gestae principle applies only to statements made under circumstances compelling spontaneity. As the matter was put in Ratten at pp.389-390:

"But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received."

Whatever one's views about the intensity of the present tussle it is difficult to describe in this language events which took place over several days following 13 March. I do not think that the evidence is admissible as res gestae.

Secondly, the applicants submit that, if regarded as hearsay, the evidence should nonetheless be admitted. In Glass Containers (Australia) Pty Limited v. Hyundai Australia Pty Limited (1986) ATPR 40-733 Toohey J. held that, contempt proceedings being interlocutory proceedings, the Court had a discretion under O.33 r.2 of the Federal Court Rules to admit heresay evidence. But his Honour went on to comment at p.47,989:

"But the matter is within the discretion of the Court. A contempt motion is a serious matter, carrying serious consequences ... In those circumstances the Court should be slow to admit hearsay evidence pursuant to O.33 r.2 except perhaps on formal matters."

I respectfully agree. I am not prepared, as a matter of discretion, to admit the evidence of the statements made by the employees contacted by telephone as hearsay evidence of the truth of the facts alleged by them. The only purpose for which it is proper, in my view, to use that evidence is to show the state of mind of the employees in relation to their personal willingness to carry out the banned work and their perception of any constraint by the union.
However, even that limited use of the affidavits provides strong evidence that the union was, after 13 March, continuing to maintain an attitude supportive of the bans. The similarity of reaction, from a large number of employees concerned with a variety of employers over a large number of sites, is striking. The evidence reveals conversations with 65 individuals. Of them 59 gave a response to the question which asserted his personal availability and willingness to do the banned work, if all external constraints were removed. All of those 59 respondents felt the existence of a constraint, various expressly (48 respondents) as the attitude of the union or (11 respondents) as the need for a mass meeting or a vote. The respondents were involved with a total of 12 of the present 14 sites, involving all eight of the present applicants. It is highly unlikely that, without some message from union officials, there would have been such a widespread perception of constraint.
One further comment should be made about this evidence. Counsel for the respondent assert that it was never the intention of the union officials to maintain the bans, that by doing nothing they were intending to leave to the men on each job an unconstrained choice as to the course which they would take. I have already referred to the failure of Mr Batchelor to make that position clear in any of his media interviews. But, if it be objected that he might not have appreciated the possibility of a misunderstanding of the union's position on 17 and 18 March, this cannot be said of the situation after 19 March, upon which day the affidavits to which I have just referred were all served. Those affidavits make clear that, rightly or wrongly, there was a widespread belief amongst the union's members on the relevant jobs that for them to carry out the banned work would be to act contrary to the wishes of those controlling the union's affairs. Yet, despite the Federal Executive meeting upon the following day, nothing was done to disabuse those members of their misconception, if it was one. Nor has the opportunity been taken during the course of these proceedings to correct any misapprehension; not even when Mr Crawford was in the witness box. I asked Mr Crawford a question, prefaced with an invitation to counsel to object if they wished, in these terms:

"You told Mr Kenzie that the union has taken no steps to maintain the bans or to enforce the bans or to help maintain them, and so on. The question that I ask you is this: so far as the union is concerned - that is to say the organization - and you are the general secretary, as distinct from what attitude might be taken by individual members, is there any objection to the banned work on these 14 sites being now done?"

Mr Kenzie, on behalf of the first respondent, did object and I did not press the question. At no subsequent stage in the hearing did counsel for the respondent take the opportunity to state that, so far as his client was concerned, the men were free to carry out the banned work.

Standard of proof
In Flamingo Park Pty Limited v. Dolly Dolly Creations Pty Limited (1985) 59 ALR 247 at p.262 I referred to the standard of proof in civil contempt proceedings as being "little short of proof beyond reasonable doubt". But, in rare cases, the disobedience of an order may also involve a criminal contempt: see R. v. Metal Trades Employers' Association; ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at p.253 and Morgan at pp.489 and 501. In such cases the criminal standard of proof -- "beyond reasonable doubt" -- is applicable.
The applicants contend that the acts and omissions of the present respondent show such a degree of defiance as to give this case the "double aspect" mentioned by Dixon J. in the Metal Trades case. Without determining that question, I think it proper to apply to the case the criminal standard of proof. I note that in Mudginberri at p.611 the majority of the High Court, with whom on this issue Brennan J. agreed, said that there is "much to be said for the view that all contempts should be punished as if they are quasi-criminal in character".

Findings
Applying this test I am of the opinion that the charges of breach of order 1 in each case -- and in the Leighton and Civil & Civic cases of orders 2, 3 and 4 -- are made out. If I am correct in concluding that, under the circumstances, some positive action was required in order to comply with those orders, there can be no dispute about the proper factual finding. It is common ground that no relevant action was taken. If I am wrong, and the allegations of contempt have to be judged upon the basis of whether there is evidence of positive acts to maintain, give effect to and enforce the bans, I am of the opinion that the evidence to which I have referred -- and which is undisputed -- establishes those allegations. On that evidence I am satisfied, beyond reasonable doubt, that the respondent has since 13 March 1987 continued to maintain, give effect to and enforce bans in breach of each of those orders. That conduct has been wilful, not casual, accidental or unintentional, and in deliberate disregard of the orders made on 13 March.
Having regard to that finding, it is not necessary for me to consider whether the evidence also establishes breaches of the various "aiding and abetting" orders.

Orders
The purpose of the present proceedings is to persuade the respondent to comply with the orders made by the Court on 13 March 1987. Civil contempt proceedings are coercive in character, not penal. Of course, the imposition of a suitable coercive sanction often has an incidental punitive element. And it is now clearly established that the order may reflect the Court's disapproval of a wilful contravention of its order, and act as a deterrent of similar future conduct: see Mudginberri at pp.612-613. In that case Gibbs C.J., Mason, Wilson and Deane JJ. said at p.613:

"... we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court."

In the present case the respondent's disobedience to the various orders forbidding the maintenance giving effect to and enforcing the bans is continuing. Contempt having been proved, it is now necessary for the Court to make the orders which are most likely to persuade the respondent to comply in the future with those orders. The orders to be imposed should also be such as to discipline the respondent for its past disobedience and to vindicate the authority of the Court.
The applicants contend that the appropriate course is to impose fines upon the respondent in respect of past breaches and, in order to induce future compliance, to issue a writ of sequestration of the assets of the union. There is no longer any doubt as to the power of the Court to take such a course. In Mudginberri the majority of the High Court said at p.614:

"There will often be elements of futurity in orders of a court which are designed to bring a contempt of court to an end. At stake is the public interest in vindicating the authority of the court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end. There are ample precedents where courts have taken strong measures in order to coerce compliance with an order of the court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made. As soon as the contempt is purged, the offender is entitled to release ex debito justitiae: In re Freston (1883) 11 QBD 545 at 554-555,

557. In the case of a corporation, its assets may be seized and remain seized until the contempt ceases. Such an order again exhibits a conditional character. There is much to be said for securing to a superior court a wide range of remedies so that it will be better able to meet the exigencies of particular circumstances."

Having regard to my finding that the respondent's disobedience to the orders made on 13 March 1987 was wilful, and not casual, accidental or unintentional it is appropriate to impose a fine in respect of each non-compliance. In determining the amount of each fine it is not, in my opinion, proper to attempt any correlation between the amount of the fine applicable to a particular site and the loss which is being occasioned on that site, as a result of the bans, to the relevant head contractor. To do so would be to expose the respondent to the jeopardy of paying twice for the same losses. If the present applicants succeed in their actions at the final hearings they will be entitled to recover damages for all proved losses. But, in fixing an appropriate amount, it is necessary to take into account all of the proved circumstances, including, in a general way, the scale of the bans and of their effects. Each of the buildings affected by a ban is a multi-million dollar project. According to the evidence given in the interlocutory proceedings the losses already occasioned by some bans run into millions of dollars.
Although the effect of particular bans is variable all have had significant consequences. In terms of the nature and quality of the respondent's conduct no distinction may be drawn between particular bans and particular sites. Consequently, it is not appropriate in the imposition of fines to make any distinction between the various orders which have been contravened. A figure should be selected, representing a proper penalty to be exacted in respect of the contravention to date of each order. In my judgment that figure is $20,000.
However, that leaves outstanding the problem of the continuing defiance by the respondent of the Court's orders. It is desirable, in order to secure compliance at the earliest possible moment, to subject the respondent to a significant daily penalty. This should be the sum of $10,000 in respect of each order. This additional fine will accrue in relation to each order each day -- Saturdays and Sundays excepted -- after to-day upon which there is a continuing breach of that order. If the respondent continues to defy all 14 orders the additional fines would, therefore, accrue at the rate of $140,000 per day. I appreciate that such fines would rapidly become a massive burden to the respondent. But it is entirely within the union's own hands whether any part of those fines is incurred.
I reject the submission of the applicants that the Court ought immediately to give leave to them to issue writs of sequestration. Sequestration is the ultimate sanction, in the case of contempt by a corporation. It is not yet certain that sequestration is necessary. I prefer to leave to the respondent one further opportunity of complying with the orders of the Court. On the other hand, it is undesirable, as counsel for some of the applicants contend, that they be put to the trouble, expense and delay of again demonstrating a continuing breach of the orders; should that occur. The course I propose to take is to give leave to the respective applicants to issue in each matter a writ of sequestration, but to order in each case that the writ lie in the Registry until Monday week, 13 April, or until such further date as may be ordered, and that the issue and execution of the writ be permanently stayed if, by that date or such other date as may be ordered, the respondent shall upon application satisfy the Court, firstly, that it is not then continuing to maintain, give effect to or enforce any ban the subject of an order in the particular proceedings and, secondly, that all fines incurred to that date in those proceedings have been paid.
The total amount of the fines ordered to be paid in respect of these eight matters, representing disobedience to date of 14 separate orders, is $280,000. This is a considerable sum to be met out of the funds of a trade union. I impose such penalties with genuine regret. It gives me no satisfaction to see the accumulated savings of the union members expended in this fashion. But it is of the most fundamental importance that the orders of the Court be obeyed.
I accept that the bans, the subject of these proceedings, have been imposed in the course of a campaign for improved work conditions; improvements to which the officials of the union believe that their members are entitled. Moreover I realise that s.45D of the Trade Practices Act is a controversial provision. But neither of these matters constitutes an excuse for failure to obey an order made under that section. It is for Parliament to make the law. In the course of their daily work members of this Court have to make orders against all manner of people, sometimes against the powerful for the benefit of the weaker members of society. Unless the Court insists, without fear or favour, that its orders be fully and promptly obeyed, a protection vital to the well-being of our society, and especially of its weaker members, will be lost.
The applicants each seek an order for costs in their favour on an indemnity basis, that is costs to be taxed as between solicitor and own client. Such an order is not uncommon in contempt proceedings, reflecting the view that a party should not be further prejudiced -- by being required to bear the difference between party/party costs and solicitor/client costs -- by the failure of the opponent to comply with an order of the court. The relevant policy was expressed by Holland J. in Degmam Pty Ltd v. Wright (No.2) (1983) 2 NSWLR 348 at p.358:

"It is, in my experience, quite common to find, in cases where an application is made to the court for committal for contempt such orders being made in an endeavour to ensure that the party that has been enforced to take that extra step, in order to obtain his rights, after they have been adjudicated by the court, may be relieved entirely of the expense of doing so and, although there is nothing in the rules about it, it is in my experience common to find an order designed to give a party a complete indemnity against such costs, usually by an order that the contemnor pay the other party's costs on a solicitor and client or solicitor and own client basis but the object is to ensure an indemnity."

At the hearing, and at their request, I reserved leave to counsel for the respondent to forward written submissions in response to this application. Since reserving judgment I have received and considered counsels' submissions. I decline to accede to their request to defer consideration of costs until after judgment is delivered. It appears to me desirable that the parties know where they stand, on all matters, as soon as possible. In any event this is unnecessary since the submissions state the reasons for opposition to a solicitor/client costs order. I note that it is submitted that the present applicants were not, in the words of Holland J, "enforced" to take the extra step of contempt proceedings. I disagree. I see no evidence to suggest that, in the absence of these proceedings, the respondent would have taken any steps to comply with the Court's orders. These are appropriate cases for orders on a solicitor/client basis.

Postscript: Friday 3 April
Addresses concluded at lunchtime on Wednesday 1 April, when I reserved judgment. On the following afternoon, the above reasons having been written, I arranged for the matters to be listed for judgment at 4 pm on Friday 3 April. Shortly afterwards Mr Kenzie Q.C., senior counsel for the respondent, contacted my Associate and asked that he be given the opportunity of further addressing the Court before judgment. I agreed to this request and the matters were listed on the following morning, Friday 3 April. At that time Mr Kenzie requested that judgment be delivered on the question whether his client was in contempt and that there then be an opportunity for the respondent to consider its position in the light of that judgment before the Court dealt with penalty. I declined this application, which I thought would result in undesirable delay in compliance with the orders. I did indicate that I had reached the view that the respondent was guilty of contempt in relation to each of the charges of maintaining etc the bans and that I would be willing immediately to hear any further submissions concerning penalty which the respondent might wish to put. Mr Kenzie then tendered, without objection, a copy of a resolution which had been passed by the Federal Executive of the union at a meeting held on the previous evening. The operative part of that resolution, after certain recitals, is as follows:

"(a) in the event that the Federal Court finds that the Union is, for any reason, in contempt of any of the orders of the Court, the Federal Executive hereby directs all members of the Union employed at any of the sites the subject of the orders of the Federal Court made against the Union on the 13th March, 1987 to lift immediately thereafter all bans imposed by them or any of them on the performance of work at any of those sites.

(b) the General Secretary be directed to communicate, as soon as practicable, the contents of this resolution to all members of the Union employed at any of the sites referred to in (a) above; and

(c) the General Secretary be further directed to communicate, as soon as practicable, to all members of the Union employed at any of the sites referred to in (a) above the substance of the decision of the Federal Court on the question of whether the Union is in contempt of any of the orders of the Court."

I asked Mr Kenzie whether the intimation of my finding regarding contempt just given would be regarded by his client as satisfying the condition in this resolution, so that the direction referred to in para.(a) might immediately be communicated to the members. He confirmed that this was so and informed me that Mr Crawford had already put in hand the task of contacting the members in order to give them that direction. He asked for the opportunity of adducing evidence that afternoon as to what had been done in the meantime. I agreed. I indicated that, under the circumstances, I would not deliver judgment that afternoon as previously planned but that I would sit at 3 pm for the purpose of hearing such evidence as the respondent might wish to call. It was my clear impression, from what had been said, that the bans would definitely be lifted and that it would not be necessary to make orders dealing with any possible future non-compliance with the orders.
Upon resumption of the hearing at 3 pm Mr Crawford was called to give evidence. He said that he had that morning attended a meeting of some of the members who had been employed, until their suspensions last December, on jobs affected by the bans. The meeting was held at the union's Sydney office and was chaired by a union official, the chairman of the Stand-down Committee. Mr Crawford estimated that about 150 men were in attendance but he was not able to say the number of sub-contractors whose employees were represented. He knew that there were no employees of at least one sub-contractor at the meeting.
Mr Crawford said that he read to the meeting the Federal Executive resolution of the previous evening. There was discussion which, he said, became heated. After a while he retired to another part of the office. Mr Lane and Mr Batchelor, who are also members of the Federal Executive, both left the meeting. Some time later, Mr Crawford said, word came to him that the meeting had rejected the Federal Executive resolution. He went to the room where the meeting had been held in order to obtain the precise terms of the resolutions which had been carried. The members were still present but Mr Crawford did not seek to re-open the meeting or to re-address the members.
There are a number of curious features about this evidence. In the first place it is surprising that the matter was put to a meeting at all. The Federal Executive had instructed Mr Crawford to communicate to each relevant member the Executive's "direction" to carry out the banned work. The intimation by Mr Kenzie to the Court that morning was that Mr Crawford was in the course of doing this. Nothing was said about a meeting. It was inconsistent with the Executive decision that, instead of the direction being communicated by Mr Crawford directly to each member, the matter should be thrown open to debate at a meeting. As I have already indicated r.26 of the union rules makes decisions of the Federal Executive binding on each member.
Secondly, Mr Crawford's behaviour at the meeting was curious. Although he said in evidence that he told the meeting that the Federal Executive decision constituted a direction, he did not point out to the members that they were bound by the rules to comply. On the contrary he left the meeting in order to allow them to decide, in his absence, whether they would in fact comply. Furthermore, Mr Lane and Mr Batchelor, who as Secretary and Assistant Secretary, respectively, of the New South Wales branch might be thought to be well placed to influence the men in favour of the Executive's decision, also left the room.
Finally, it is odd that Mr Crawford did not seek to reconvene the meeting. According to him, he left the meeting because of some hostility in the comments made by members and in the belief that they were more likely to accede to the Executive's wishes if he withdrew. But, if that were so, one would have thought that, when he learned that they had failed to take the desired course, he would have called the members together again and applied some "stick". But he simply accepted the decision.
I am not satisfied that there was a genuine attempt to persuade the members to carry out the banned work. Indeed, I am not satisfied that there was no influence in the other direction. The contrast between the stated result at the meeting and the replies of individual members to the telephone contacts is striking. There is much about this meeting that has not been told. My present suspicion is that the meeting was devised as a way of distancing the Federal Executive from the continuation of the bans.
However, it does not matter whether this suspicion is well-founded. On any view there was a decision to maintain the bans. That decision was taken at a meeting of union members, held under the auspices of the union at the premises of the union and under the chairmanship of a union official. The decision is just as much a union decision as if it had been made by the Federal Executive or one at more elected officials. In the course taken, this ad hoc meeting was substituted for the Federal Executive as the body within the union to decide upon the future of the bans. The intent of the orders made on 13 March is that the union, as an organization, should thereafter withdraw all influence in favour of the maintenance of the bans, leaving it to each affected employee to make his own personal decision as to whether he would carry out the items of work which had previously been banned.
The events of Friday 3 April do not, of course, affect the matter of contempt up to that time. The only present relevance of those events is that they bear upon the question whether it is necessary or desirable to include in the orders to be made provisions dealing with any continued contempt. Had I been satisfied that there was no likelihood of continuing contempt I would have eliminated from the intended orders, referred to above, the references to daily fines and to writs of sequestration. As I was not so satisfied, I reached the conclusion that, subject to one qualification, I should adhere to the orders previously intended.
The qualification just mentioned arises out of the circumstance that, by the completion of Mr Crawford's evidence and of submissions regarding that evidence, it was late in the day; too late conveniently to publish reasons for judgment which would include a reference to the events of that day. On the other hand it was desirable immediately to make orders, not least so that the respondent might use the weekend, during which no losses were being suffered by the applicants, in order to consider its position in the light of the orders. Accordingly, I concluded that I should make the orders forthwith, with an indication that my reasons for those orders would be published on the following Monday.
However, had I exactly retained the intended orders the respondent might have become exposed to daily fines before it had my reasons for judgment. I thought it undesirable that the respondent should be placed in jeopardy of daily fines before having the full findings of the Court. I thereupon varied the proposed orders so as to exclude Monday, 6 April 1987, from the operation of the various daily fines. In all other respects the orders which I made, and which were in fact pronounced late on Friday 3 April, were as I had intended before that day. The above constitutes my reasons for making those orders.

[1987] FCA 164

06 APRIL 1987