Herbert v The Queen

[1982] FCA 147

Re: THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS'
FEDERATION; NORMAN L. GALLAGHER; B. BOYD
And: THE HONOURABLE ROBERT IAN VINER who sues as Minister of State for
Industria Relations AND OTHERS (1982) 63 FLR 253
No. V30 of 1982
Criminal Contempt - Evidence
2 IR 53

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers J.(1), Evatt(2) and Deane(2) JJ.

CATCHWORDS

Criminal Contempt - registered organisation and its officers charged - whether statement made by officers in compulsory conference admissible - whether statement of charge sufficiently particularized allegations against officers - appropriateness of penalty and form of order.

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

Constitution s.51(xxxv)

Federal Court of Australia Act, 1976, s.31

Federal Court Rules, 0.40 rr.6 and 8

Contempt - Conciliation and arbitration - Proceedings to cancel registration of registered organization - Acts of organization and its officers - Statement of charge - Whether charges distinctly specified - Whether penalty manifestly excessive - Federal Court of Australia Act 1976 (Cth), s. 31 - Federal Court Rules, O. 40, rr. 6, 8.

Evidence - Conciliation and Arbitration - Proceedings to cancel registration of registered organization - Contempt of court - Statements made during compulsory conference before Conciliation and Arbitration Commission - Whether admissible in contempt proceedings - Conciliation and Arbitration Act 1904 (Cth), s. 27.

HEADNOTE

The first appellant was a registered organization of employees under the Conciliation and Arbitration Act 1904 and the second and third appellants were officers of the organization. Proceedings to cancel registration of the organization were instituted in the Federal Court of Australia. The respondents then instituted contempt of court proceedings against the appellants. Pursuant to O. 40, r. 6 of the Federal Court Rules, each appellant was served with a statement of charge setting out particulars of acts alleged against the appellants to constitute the contempt of court. The trial judge admitted evidence of what was said at a compulsory conference before the Conciliation and Arbitration Commission and, on adjudging each appellant guilty of contempt of court, imposed penalties.

On appeal,

Held: (1) It is a well-recognized principle of law that no person should be punished for contempt of court, which is a criminal offence, unless the specific offence charged against him be distinctly stated.

Re Pollard (1868) LR 2 PC 106; Coward v. Stapleton (1953) 90 CLR 573, applied.

Per Smithers J. - It is sufficient that the gist of the conduct alleged to constitute contempt of court is stated in the particulars of the charges.

Chang Hang Kiu v. Piggott (1909) AC 312; Coward v. Stapleton (1953) 90 CLR 573, applied.

(2) Per Evatt and Deane JJ., Smithers J. dissenting - The particularized statement of charge served on the second and third appellants contained no distinct statement of the particular charge of contempt of court which the trial judge found to have been proved against the second and third appellants.

(3) The provisions of s. 27(6) of the Conciliation and Arbitration Act 1904 do not preclude evidence of what happened in a compulsory conference before the Conciliation and Arbitration Commission being given in subsequent proceedings for criminal contempt of court where what was said or done in the conference is alleged to constitute, in itself, criminal contempt or to provide evidence of criminal contempt.

Gartside v. Outram (1856) 26 LJ Ch 113; British Steel Corporation v. Granada Television Ltd. (1981) AC 1096; Varawa v. Howard Smith & Co. Ltd. (1910) 10 CLR 382, referred to by Smithers J.

(4) Per Evatt and Deane JJ. - The consideration that, generally speaking, parties to a compulsory conference under s. 27 of the Conciliation and Arbitration Act 1904 should be able to speak freely without being subsequently disadvantaged by reason of genuine efforts to settle a dispute would not ordinarily warrant as a matter of discretion, rejection of evidence of whatever was said or done in such a conference where such evidence is adduced to support independent proceedings for contempt of court.

(5) The findings of fact by the trial judge as to the acts of the first appellant, which constituted the basis of the finding that the first appellant was guilty of contempt of court, were justified and inevitable on the evidence.

(6) The actions of the first appellant were calculated to hinder and pervert the administration of justice in the proceedings to cancel registration of the registered organization and constituted contempt of court.

Littler v. Thomson (1839) 2 Beav 129; 48 ER 1129, applied by Evatt and Deane JJ.

(7) The pecuniary penalty imposed by the trial judge on the first appellant was not so manifestly excessive as to constitute an error justifying the interference of an appellate court.

Observations by Evatt and Deane JJ. upon the appropriate penalty for statements or actions which constitute no more than a technical contempt of court.

(8) Per Evatt and Deane JJ. - There was no ground for interfering with a requirement of the trial judge that the pecuniary penalty be paid by the first appellant or its duly authorized agent.

HEARING

Melbourne, 1982, July 21; #DATE 21:7:1982

APPEAL

Appeal from the judgment of the Federal Court of Australia constituted by Keely J.

The facts appear from the judgment of Evatt and Deane JJ.

D.M. Ryan Q.C. and R. Merkel, for the appellants.

M.J.L. Dowling Q.C., A.G. Uren and C.N. Jessup, for the respondents.

Cur. adv. vult.

Solicitors for the appellants: Holding, Redlich & Co.

Solicitors for the respondents: B.J. O'Donovan, Commonwealth Crown Solicitor.

H.W. FRASER

ORDER

1. The finding of 11 May, 1982 that the Australian Building Construction Employees' and Builders' Labourers' Federation be adjudged guilty of contempt of the Federal Court of Australia be affirmed.

2. The order of 18 May, 1982:

"that the first-named respondent, the Australia Construction Employees and Builders Labourers' Federation, in respect of the contempt of the Federal Court of Australia of which it was adjudged guilty on 11 May 1982, namely that between a date on or about 5 April 1982 and 21 April 1982 it interfered with the course of justice by conduct and statements which were intended by it to, and which had the tendency to, dissuade persons from giving evidence on behalf of the applicants in the cancellation of registration proceedings herein, or to dissuade them from giving evidence unfavourable to the first-named respondent, and which were also intended by it to, and had the tendency to, induce the Master Builders' Associations to discontinue as applicants in the said proceedings, shall pay a fine of $15,000.00 which fine shall be paid to the Registrar within 7 days of this date by the first-named respondent or by an agent properly authorized in writing by the first-named respondent to make such payment on its behalf"

be affirmed subject only to the variation that there be substituted for the words and figure "within 7 days of this date" the words and figures "on or before 30 July, 1982"

3. The finding of 11 May, 1982 that the appellant Norman L. Gallagher be adjudged guilty of contempt of the Federal Court of Australia and the orders of 18 May, 1982 imposing a sentence of two months' imprisonment on the said Norman L. Gallagher and for the issue of a warrant for his apprehension be set aside.

4. The finding of 11 May, 1982 that the appellant B. Boyd be adjudged guilty of contempt of the Federal Court of Australia and the orders of 18 May, 1982 that the said B. Boyd pay a fine of $500.00 or in default of such payment be imprisoned for a period of 14 days be set aside.

5. The Australian Building Construction Employees' and Builders' Labourers' Federation pay the respondents their costs of the appeal.

JUDGE1

On 18 May 1982 the appellants Gallagher, Boyd and the Builders' Labourers' Federation (the Federation) were adjudged guilty of contempt of this Court and penalties were imposed upon them.

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

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

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

In general terms it was submitted on behalf of the appellant Federation that the fine imposed on it in respect of such contempt was excessive.

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

In respect of a charge of contempt of Court it is essential that the charge be distinctly stated to the person accused so that he may have adequate opportunity to explain or deny the allegations made. As was said in the unanimous judgment of Williams C.J., Kitto and Taylor JJ. in Coward v. Stapleton (1953) 90 C.L.R. 573 at pp. 579 and 580:-

"Even apart from any such express provision, however, it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard (1868) L.R. 2 P.C. 106, at p.120; R. v. Foster; Ex parte Isaacs (1941) V.L.R. 77 at p.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) A.C. 312, at p.315. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.
Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon. . . ."

So far as the appellant Gallagher is concerned particulars of the charge against him were,

"(a) On the 5th April 1982 each of the Respondents (the appellants) Donnelly, Tate and Boyd procured stoppages of work by all members of the Respondent Federation employed on building operations being conducted on the following sites:-
(i) 230 Collins Street, Melbourne
(ii) Fitzroy North Primary School
(iii) Williamstown Primary School
(b) On the 16th April 1982 the Respondent (appellant) Bingham procured stoppages of work by all members of the Respondent (appellant) Federation employed on building operations being conducted on the site of the Aspendale Special Development School.
(c) At all material times the building operations on each of the said sites were being conducted by H.M. Keast and Sons Pty. Ltd. ('the company').
(d) At all material times Reginald Keast ('Keast') was the Chairman of the Directors of the company.
(e) At the time of procuring those stoppages of work each of the Respondents, (appellants) Donnelly, Tate, Boyd and Bingham informed servants or agents of the company that the reason for imposing the stoppages was because of Keast being involved in the present proceedings against the Respondet (appellant) Federation for the cancellation of its registration as an organization under the Conciliation and Arbitration act 1904 ('the deregistration proceedings').
(f) From the time of the procuring of the stoppages up to the 21st April 1982 no was done on any of the said sites by any members of the Respondent (appellant) Federation.
(g) The procuring of the stoppages of work and the continuation of those stoppages was brought about by the Respondent (appellant) Federation or by the Respondent (appellant) Gallagher, or by the Respondent (appellant) Donnelly, or by the Respondent, (appellant) Tate, or by the Respondent (appellant) Boyd, or by the Respondent (appellant) Bingham, or each of them.
(h) The Respondent (appellant) Gallagher has stated that the stoppages of work on the said sites were because of Keast being involved in the deregistration proceedings.
(i) The conduct of and the statements made by each of the respondents (appellants) had the tendency to and were intended to -
(i) constitute a threat to persons participating in or supporting the deregistration proceedings, that they would be injured or victimized for so participating or supporting.
(ii) constitute a threat to persons bringing or intending to bring proceedings in the Federal Court of Australia against the Respondent (appellant) Federation that they would be injured or victimized for so bringing or intending to bring such proceedings.
(iii) dissuade persons from giving evidence on behalf of the Applicants in the deregistration proceedings or dissuade them from giving evidence unfavourable to the Respondent (appellant) Federation.
(iv) impose pressure on the applicants in order to influence them in the conduct of the deregistration proceedings or to discontinue the said proceedings."

So far as the appellant Gallagher was concerned these particulars contain allegations in the nature of background, and also the essence of the charge against him which was that he procured the stoppages of work referred to or brought about their continuation, that he had stated that the stoppages were because of Keast being involved in the deregistration proceedings, and that that conduct and statement tended to and were intended to constitute threats of the nature of those specified in sub-para. (i), (ii), (iii) and (iv) of para (i) of the particulars set out above. The evidence against the appellant Gallagher was in substance:-
(a) that on the evening of 5 April 1982 he had informed one Ainsworth that the bans imposed by the Builders Labourers' Federation on construction work by the builder H.M. Keast & Son Pty. Ltd. were because an executive of the company Mr. R. Keast was a driving force behind the moves to deregister the Union. He added, "We are going to repay a few debts; it will be tit for tat from now on";
(b) that Mr. Keast was chairman of directors of H.M. Keast & Sons Pty. Ltd. and was also a member of the Council of the Victorian Branch of the Master Builders' Federation of Australia;
(c) that Mr. Keast had previously been President of the Federation, and while he was so President in September 1981, a decision in which he participated had been made by the Federation to support the application by the Federal Government to the Federal Court to deregister the Builders Labourers' Federation.
(d) that at all material times the appellant Gallagher believed that Mr. Keast and the company had taken steps to promote the instigation of and the preparation of the pending application to deregister the Federation.
(e) that stoppages of work had occurred as and when stated in pars. (a) and (b) of the particulars of charges and that such stoppages continued until at least 20 April 1982;
(f) that as a result of information received by Mr. Keast from his company's site foreman at 230 Collins Street, Melbourne of the stoppage of work at that site he instructed the Victorian Branch of the Master Builders' Federation on 5 April 1982 to notify a dispute to the Conciliation & Arbitration Commission in Melbourne;
(g) that the notification of the dispute came on for hearing before his Honour Mr. Justice Alley on 8 April 1982 at which Mr. Keast was present. Mr. Shaw appeared for the Company and Mr. Boyd an organizer of the Federation appeared for it. Part of the proceedings contained the following passages of evidence:-
MR. BOYD: Now to the matter at hand. The union views the situation with H.M. Keast as part of a football match, if I can use the analogy - we are now entering the second quarter. In the first quarter the union for many months has been under attack in legal quarters in particular, namely the deregistration in the Royal Commission where we have had to try and prove our bona fides. We are getting a bit jack of it, so to speak, and we are now entering the second quarter where we are going to put it on people we believe have ---
HIS HONOUR: I thought you were not co-operating at all in the Royal Commission; you are not playing. The first quarter of the match and yet you refused to play.
MR. BOYD: No, you are not entirely correct, because the game is still going on in the media and it is played out that way. And if that is the way the employers want to play it, well, we will play it our way, and we are entering the second quarter and we believe we will take the battle right back to the employer. We have information, or our secretary has, that H.M. Keasts are involved deeply in those matters, and we are willing to take the fight right back to them. The MBA representative, Mr. Shaw said that no such demand had been put on the company how to fix a dispute; well, that is not true. Through the foreman at 230 Collins Street, I did say that what we requested was that the company Keasts meet with the secretary to discuss the problem. And that is how the union views it; that if Keasts will meet our secretary to talk out the information the union has, then we might view the bans in a different light. That is all I have got to say, your Honour.
HIS HONOUR: How do you think these bans line up with the package settlement and the statement of intent?
MR BOYD: I have got no comments on that, the secretary would have to answer that.
HIS HONOUR: Your personal position is that you are carrying out the directions of the secretary, is that so?
MR BOYD: And the union executive, yes. And our invitation stands: that Keasts meet with our secretary.
. . .
HIS HONOUR: Well, this is the only suggestion I can make. The only other thing I can do is to express my displeasure of this, which I do. It will come as no surprise to Mr. Boyd. But the commission cannot condone these blatant bans, and I believe they are completely outside the spirit of intent of the package. No doubt there can be some argument about that, but I have no doubt in my own mind they are outside the spirit of the package. I feel that the only progressive thing that can be done without a great deal of confidence that it will achieve anything immediately, is to have a conference with the general secretary, and I think it ought to be done on the basis of a compulsory conference. Mr. Boyd, is it your suggestion, in any event, that there should be a discussion with the general secretary?

MR BOYD: Yes.
HIS HONOUR: I am proposing that now that the matter has been brought to the commission, I am proposing to hold a conference next Wednesday afternoon.
. . .
HIS HONOUR: I will adjourn these proceedings until 2.15 on Wednesday 14 April, and that further proceeding will take the form of a compulsory conference in which the general secretary will be directed to appear. And, Mr. Boyd, I would be grateful if you would convey to the general secretary the commission's concern at this industrial action.
MR BOYD: I will, your Honour."
(h) that on 14 April the matter of the dispute again came on before Mr. Justice Alley and Mr. Keast was present. Mr. Shaw represented the Company and the Federation was represented by the appellant Boyd and the General Secretary of the B.L.F., the appellant Gallagher;
(i) The proceedings on the 14th April commenced with an inquiry from his Honour Mr. Justice Alley as to whether either of the parties had anything further to add to what had been said during the proceedings on the 8th April. Neither party wished to make any further statements, and the matter was then adjourned into conference chaired by Mr. Justice Alley.
(j) Mr. Justice Alley then asked Mr. Gallagher what the B.L.F. hoped to achieve by the actions against the company. Mr. Gallagher replied by making a statement to the effect that both he and the B.L.F. had been kicked around by the employers in the building industry and their backroom committees and that it was time that the union did some kicking around in the field. Mr. Gallagher made a further statement to the effect that since Mr. Keast was involved on the employers' committees that instigated the deregistration proceedings against the union and the Royal Commission, the company was the first on the union's list.
(k) Mr. Shaw then pointed out to Mr. Gallagher that the company had not placed any evidence before the Royal Commission or those involved in the deregistration proceedings. Mr. Gallagher did not appear to be influenced by that statement, but made a further statement to the effect that on the basis of his knowledge of the employers in the building industry, the company would not get any support from those employers.
(l) After further discussion between those at the conference, Mr. Justice Alley again asked Mr. Gallagher what he expected to achieve by his actions against the company. Mr. Gallagher made a statement to the effect that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the B.L.F. and, further, the payment of fines which had been imposed on members of the B.L.F. with respect to their refusal to give evidence before the Royal Commission."

Having regard to the observations quoted above from Stapleton's Case (supra) it is clear that a finding that the appellant Gallagher had been guilty of contempt of Court could be made only in respect of conduct the gist of which was stated in the particulars of the charges. The gist of the charge against the appellant Gallagher as specified in the charges was that he had procured the stoppages at the site of works of the company or he had brought about the continuation of those stoppages and that he had stated that the purpose of the stoppages of work on those sites was because of Keast being involved in the deregistration proceedings and that he engaged in such conduct in circumstances in which it tended to and was intended to constitute a threat to persons participating in or supporting the deregistration proceedings pending in the Federal Court of Australia in any way as specified in particulars under para (i) of the particulars of the charges. It may be said therefore that unless it were proved that the appellant Gallagher had procured the stoppages or had brought about the continuance of the stoppages at the work sites of the company and had stated that those stoppages were brought about or continued because of Keast being involved in the deregistration proceedings with the tendency and intention to constitute a relevant threat, no finding of contempt could be made. Also, even if there were evidence of these matters no finding that the appellant Gallagher was guilty of a contempt of court could be made unless the learned Judge had accepted that evidence to the point of satisfaction beyond reasonable doubt.

To my mind it is clear that there was adequate evidence that the appellant Gallagher had brought about the continuance of the stoppages. It is clear that on the evening of 5 April he knew that the stoppages had been called at the Company's building sites and that, referring to them, he had stated that "they had been imposed by the Federation on construction work of the builder H.M. Keast & Son Pty. Ltd. because Mr. Reg Keast, an executive of the company was a driving force behind the moves to deregister the Union." He added in that connection, "we are going to repay a few debts; it will be tit for tat from now on." Further, on 14 April at the proceedings before Mr. Justice Alley, in compulsory conference, concerning the dispute which had been notified by Mr. Keast's company in respect of the said stoppages and first heard on 8 April 1982, the appellant Gallagher appeared with the appellant Boyd for the Federation. In those proceedings the appellant Gallagher made statements as set forth above concluding by saying that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for deregistration proceedings against the Federation and further the payment of fines which had been imposed on members of the Federation with respect to their refusal to give evidence before the Royal Commission.

In my opinion it was open to the learned Judge to find that in making these statements the appellant Gallagher was speaking for himself alone or for himself jointly with the Federation and not merely as the representative of the Federation. Also it was open to the learned Judge to find that the actions which the appellant Gallagher referred to as "his actions" were the continuing of the stoppages.

The continuation or calling off of the stoppages was the one subject matter of the discussion between Mr. Justice Alley and the appellant Gallagher. When Mr. Justice Alley inquired what the appellant Gallagher expected to achieve by "his actions" the language no doubt reflected an assumption by his Honour that the stoppages, or at least their continuation, were brought about by and were under the control of the appellant Gallagher. And in replying quite naturally, in similar fashion, the appellant Gallagher acknowledged that what the conference was about, namely, the continuing stoppages, were "his actions". There is no other reasonable interpretation of the exchange that took place. And there was, in this exchange an assertion by the appellant Gallagher that the continuation of the stoppages was his action as well as that of the Federation. Thus in that conference there was an assertion by the appellant Gallagher of personal participation in the continuation of the stoppages, in the purpose thereof and in the accompanying threats.

It was contended that the proceedings in compulsory conference were by s.27 of the Conciliation & Arbitration Act 1904 in the nature of without prejudice negotiations or otherwise a privileged occasion in respect of which evidence was not admissible in other proceedings. It is unnecessary to examine this contention further than to observe that if there be any such quality of privilege in the proceedings at the conference, it would not extend to what may be described as iniquity committed threat. Evidence of conduct in such a conference constituting an iniquity, such as a contempt of court, would be admissible on that issue notwithstanding any such privilege if there be any. See Gartside v. Outram (1856) 27 L.J. Ch. 113 at p.114; British Steel Corporation v. Granada Television Ltd (to be reported in (1981) A.C. 1096) (1980 3 W.L.R. 774 at p.851 and Varawa v. Howard Smith & Co. Ltd. (1910) 10 C.L.R. 382.

In his reasons for judgment the learned Judge does not say, in so many words, that he was satisfied beyond reasonable doubt that the appellant Gallagher participated in the continuation of the stoppages of work, but to my mind, it is manifest upon a natural reading of his words in their context, that he does, clearly enough, express such satisfaction. The learned Judge found that at the conference, Mr. Gallagher said amongst other things:-

"(a) That since Mr. Reginald Keast was involved on the employers' committees that instigated the deregistration proceedings against the union and the Royal Commission, the company was the first on the union's list.
(b) That on the basis of his knowledge of the employers in the building industry, the company would not get any support from those employers.
(c) That he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation, and further, the payment of fines which had been imposed on members of the Federation with respect to their refusal to give evidence before the Royal Commission."

Dealing with the case against the appellants Gallagher, Boyd and the Federation and referring to an observation of Lord Reid in Attorney-General v. Times Newspapers Ltd. (1974) A.C. 273 at p.296 that, in order to prevent a trial from being unfair, "comment likely to affect the minds of witnesses must be stopped . . .", the learned Judge said, "The present case deals with intimidatory conduct - not simply with comment." He said further:-

"I also am satisfied beyond reasonable doubt that the statements by the respondent Gallagher on 14 April, 1982, to which I have already referred, and which were made in the presence of the representative of the Master Builders' Association of Victoria and the company were made by him partly for the purpose of dissuading persons from giving evidence on behalf of the applicants in the deregistration proceedings or, if he failed in that purpose, dissuading them from giving evidence unfavourable to the Federation and also partly for the purpose of inducing those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. Mr. Keast gave unchallenged evidence that, 'Mr. Gallagher made a statement to the effect that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation'. In my opinion Mr. Gallagher there made it clear that his actions were intended by him to induce the Master Builders' Associations throughout Australia to withdraw from their role as joint applicants in the deregistration proceedings."

It is to be observed also that the order of the learned Judge recites that the appellant Gallagher had committed the contempt of which he was adjudged guilty on 11 May 1982, namely, that between a date on or about 5 April 1982 and 21 April 1982 he interfered with the course of justice by conduct and statements.

It is suggested that a fine line is involved. But in my view this is not so. At the compulsory conference nobody was in any doubt about the subject in dispute. That was whether the stoppages, which everybody knew about, were to be brought to an end or continued. Mr. Justice Alley was urging the discontinuance of the stoppages. On that the appellant Gallagher was non co-operative. When asked what he expected to achieve by his actions he was quite direct and to the point in saying that he expected his actions to achieve a withdrawal of support by the Master Builders' Association throughout Australia for the deregistration proceedings. Few words were used but few were needed. The only action of the appellant Gallagher likely to have this effect was his conduct in continuing the stoppages or continuing to participate in their continuance. It is significant that Mr. Keast was not cross-examined as to what was said at the conference. It would be no surprise to anybody at that conference that the appellant Gallagher should assert his participation in and indeed control of the continuation of the stoppages.

In my opinion the learned judge rightly found that the appellant Gallagher so participated and of course made the threats alleged. Accordingly the appeal of the appellant Gallagher against conviction should be dismissed.

As to the appellant Boyd, his case is to be distinguished from that of the appellant Gallagher in that there is nothing to suggest that in his appearance before Mr. Justice Alley he did not act merely in the role of advocate. He did not claim that he personally had engaged in any actions or conduct designed to put pressure of any kind upon those connected with the deregistration proceedings to withdraw them or support for them. True it is that he was one of those who conveyed a message to the building workers at one site that they were to stop work and explained the objective of the Federation in that respect. However, in the cases against the other organizers, his Honour did not consider that factor alone to be a contempt. Accordingly there was insufficient evidence to support a finding that the appellant Boyd committed the contempt alleged against him. His appeal should be allowed and the conviction against him should be set aside.

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

The sentences imposed on the appellants Gallagher and the Federation are said to be excessive.

An appellate court interferes with the sentence imposed upon a convicted person only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive as to manifest such error. (See The Queen v. Tait (1979) 46 F.L.R. 386 at p.388. Compare Harris v. The Queen (1954) 90 C.L.R. 652, followed by the Federal Court in Kovac v. The Queen (1977) 15 A.L.R. 637)

The Federation is the creature of the law. It has access to the Conciliation & Arbitration Commission from which it obtains awards imposing obligations upon employers which it may enforce in the Courts of the land. It has a monopoly of recruitment of members in its areas of industrial activity. It is a very large and powerful organization of great significance in the community. Its capacity to cause sudden devastating dislocation in building operations without warning gives it enormous bargaining and indeed menacing power. It was this power which its Managing Committee decided to use against H.M. Keast & Sons Pty. Ltd. in bringing to a standstill its building operations at its various sites. The threat was of a continuing stoppage at the Company's sites as the first on the Federation's list of proposed victims because it was thought to be involved in the pending deregistration proceedings. Such a ruthless exercise of destructive industrial power would be objectionable enough in any circumstances but to use it accompanied by threats of more of the same to frighten persons that they would abandon their approach to a Court to seek legal remedies was, on the part of such an organization, an offence against the community of a high order. There could be no question of the fine of $15,000 being excessive.

Also so far as the penalty against the appellant Gallagher is concerned that penalty of two months imprisonment is not itself so high as to indicate a manifest error. There is one matter however in respect of which it was suggested that the learned Judge wrongly assessed a salient feature. That was that he considered that the appellant Gallagher was in a position himself to bring the stoppages to an end at some time before they were terminated. It does not appear however that under the Union rules the appellant Gallagher was authorised actually to direct the Union members to return to work. But it is perfectly clear that the appellant Gallagher as its General Secretary could at any time have called his executive together to consider termination of the stoppage. He could have exercised his influence in the Union to divert it from its unlawful, damaging, and threatening course. Executive officers and Union leaders such as the appellant Gallagher are persons of great importance in the economic and industrial life of the community. They wield great influence. They have corresponding responsibilities. One such responsibility is to refrain from unlawful conduct and particularly from intimidating actions designed to frighten persons so that they abandon their elementary right to approach the Court in the pursuit of legal remedies. Such conduct strikes at the root of the administration of justice. Accordingly, in my opinion this is not a case for interference by this Court with the penalty imposed.

In conclusion therefore:-
(a) the appeal of the appellant Boyd should be allowed with costs;
(b) the appeal of the appellant Gallagher should be dismissed with costs;
(c) the appeal of the appellant Federation should be dismissed with costs.

JUDGE2

Each of the Australian Building Construction Employees' and Builders' Labourers' Federation ("the Federation"), Mr. Norman Gallagher and Mr. Brian Boyd appeals from a judgment and orders of Keely J. finding that it or he was guilty of criminal contempt of the Federal Court and imposing a penalty. In the case of the Federation, the penalty imposed was a fine of $15,000. In the case of Mr. Gallagher, the penalty imposed was a term of imprisonment for a period of two calendar months. In the case of Mr. Boyd, the penalty was a fine of $500 accompanied by an order that, in default of payment thereof, he be imprisoned for a period of fourteen (14) days. Associated charges of criminal contempt against three other persons (Messrs. Donnelly, Tate and Bingham) were dismissed by his Honour.

At relevant times, the Federation has been registered as an organisation of employees under the Conciliation and Arbitration Act, 1904 ("the Act"). In September, 1981, the then Commonwealth Minister of State for Industrial Relations (The Hon. Robert Ian Viner), the State of Victoria and the State of Western Australia instituted proceedings in the Federal Court against the Federation seeking, pursuant to s.143 of the Act, an order directing the Industrial Registrar to cancel the registration of the Federation. It is convenient to refer to those proceedings as "the deregistration proceedings". In December, 1981, the Australian Federation of Construction Contractors, the Master Builders' Federation of Australia Incorporated, and the Master Builders' Associations of New South Wales, Victoria, South Australia, Australian Capital Territory and Western Australia were added as applicants in the deregistration proceedings.

The contempt of court which was found, at first instance, to have been proved against each of the Federation, Mr. Gallagher and Mr. Boyd was in relation to the deregistration proceedings. The motion instituting the contempt of court proceedings was, for administrative purposes, numbered in the deregistration proceedings. That numbering should not be permitted to obscure the fact that the contempt proceedings are separate and distinct proceedings pursuant to s.31 of the Federal Court of Australia Act, 1976.

In the course of his judgment, Keely J. summarized, in numbered paragraphs, his findings as to the essential facts. Subject to four matters to which subsequent reference will be made, those findings of fact were not disputed by the appellants on the appeal. It is convenient to set them out in his Honour's words:

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

2. The company is a member of the Master Builders' Association of Victoria, an association of employers registered as an organization under the Act which is a joint applicant in the deregistration proceedings.
3. Mr. Reginald Keast was the chairman of the directors of the company. Until October 1981 he was the president of the Master Builders' Federation of Australia and was and is a council member of that federation, positions which he held as the representative of the Master Builders' Association of Victoria in which body he was and is a councillor.
4. The respondent Gallagher was both the general secretary of the Federation and the secretary of its Victorian branch during the period from 5 April, 1982 to 21 April, 1982. Each of the other four named respondents to the notice of motion was an organizer of the Federation.
5. The respondent Federation on or before 5 April, 1982 made a decision to "ban" work by builders' labourers on building sites at which the company was conducting building operations. The evidence does not disclose the precise terms of the decision nor the identity of the body or person within the Federation which or who made the decision. The ban was still in force on 16 April, 1982 but by 27 April, 1982 had been "totally lifted". It appeared to be accepted by the applicants that it was lifted on 21 April, 1982. The evidence does not disclose the identify of the body or person which or who lifted the ban.
6. On the evening of 5 April, 1982 the respondent Gallagher told Mr. Ainsworth, the Chief Industrial Reporter for the Sun News Pictorial who had held that position for approximately three years, that the bans were imposed "because an executive of the company, Mr. Reg Keast, was the driving force behind the move to de-register the Federation". The respondent Gallagher also said to him that "We are going to repay a few debts. It will be tit for tat from now on".
7. (a) At approximately 10.30 a.m. on 5 April, 1982 the respondent Boyd called at the 230 Collins Street, Melbourne building site and had a meeting of the members of the Federation employed on that site. Approximately 15 minutes later he informed the company's site foreman that all members of the Federation employed on the site were being sent home and that the reason for the union's action was that the Federation, through a very reliable contact, had been told that the company was largely responsible for the deregistration proceedings. The three members of the Federation employed on the site by the company left the site about thirty minutes after Mr. Boyd arrived. As a result of information which he received on 5 April, 1982 from site foremen on this site, Mr. Keast instructed the Master Builders' Association of Victoria to notify an industrial dispute to the Australian Conciliation and Arbitration Commission (the Arbitration Commission).
(b) On the same day a person whose identity was not established by the evidence but who was admitted by the Federation in other proceedings to have been an organizer of the Federation, called at the Fitzroy North Primary School site and told the company's site foreman that he had instructed the members of the Federation on site to leave the job because the Company was the main instigator in trying to get the Federation deregistered. The evidence did not establish that any stoppage of work at that site took place on that day.
(c) On the same day at approximately 2.00 p.m. the respondent Donnelly called at the Williamstown Primary School site and told the company's site foreman that the Federation had placed a black ban on jobs being carried out by the company and that the ban had been imposed because the company was the main instigator in the deregistration proceedings against the Federation. The site foreman (Mr. Wilkins) in his affidavit said that he heard Mr. Donnelly make a statement to certain members of the Federation on the site "to the effect that no productive work was to be done" by them. However, under cross-examination by Mr. Ryan, of Queen's Counsel, on behalf of all the respondents, he agreed that Mr. Donnelly did not stop them finishing the work remaining to be done by them, that they left the site because there was no more work for them to do and that they would have left the site at that time "whether or not Mr. Donnelly had spoken to them". He said that it was a matter for future arrangement between the company and the sub-contractor as to when he and his employees came back to the site to do more work and that no-one on behalf of the company made any request for the sub-contractor to return to work on the site because there were other jobs which were more important.
(d) On 16 April, 1982 the respondent Bingham called at the Aspendale Special Development School site, introduced himself to the company's site foreman as a Federation organizer and said "I suppose you have been expecting me". Under cross-examination the site foreman agreed that the latter remark apparently was made "because by that time . . . it was common knowledge that the Federation had placed a ban on" the company. Mr. Bingham then said "I am here to send the labourers home" and, in reply to a question, that it was because of H.M. Keast and Sons' involvement in the deregistration proceedings. He addressed a meeting of the five builders' labourers on the site and after the meeting told the site foreman that the labourers were going home. The labourers left the site shortly afterwards, after packing away tools, and the respondent Bingham then left the site.
8. The respondent Boyd appeared on behalf of the Federation before the Arbitration Commission on 8 April, 1982 in a hearing related to the notification by the Master Builders' Association of Victoria of the abovementioned events when Federation organizers on 5 April, 1982 called at the company's building sites at 230 Collins Street, Melbourne; Fitzroy North Primary School and Williamstown Primary School. In a public hearing in the presence of the representative of the Master Builders' Association of Victoria and the company, Mr. Boyd stated that "if that is the way the employers want to play it, well, we will play it our way . . . and we believe we will take the battle right back to the employer. We have information, or our secretary has, that H.M. Keasts are involved deeply in those matters" (referring to the deregistration proceedings and the Royal Commission) "and we are willing to take the fight right back to them". He also stated that the Federation wished that the company would meet with the secretary (the respondent Gallagher) and that "if Keasts will meet our secretary to talk out the information the union has, then we might view the bans in a different light". He said that he was carrying out the directions of the secretary and the union executive; he also stated that he was "in no position to lift (the bans) at this stage" but that if the company contacted the secretary and arranged a meeting the secretary "might be amenable to" lifting the bans.
9. On 14 April, 1982 the matter again came before the Arbitration Commission, when the respondent Gallagher and Mr. Boyd represented the Federation. The parties were asked whether they had anything further to add to what had been said during the proceedings on 8 April but neither party wished to make any further statements, and the matter was then adjourned into conference. During that conference Mr. Gallagher said, amongst other things:-
(a) That since Mr. Reginald Keast was involved on the employers' committees that instigated the deregistration proceedings against the union and the Royal Commission, the company was the first on the union's list.
(b) That on the basis of his knowledge of the employers in the building industry, the company would not get any support from those employers.
(c) That he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation and, further, the payment of fines which had been imposed on members of the federation with respect to their refusal to give evidence before the Royal Commission."

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

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

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

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

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

It is, in the circumstances, unnecessary that we express any concluded view on the question whether the conference of 14 April was in truth a compulsory conference under s.27 of the Act. Keely J. held that it could not have been for the reason that the Commission's power to call a conference under s.27(1) is a power which only exists for "the purposes of the performance of (its) functions in respect of an industrial dispute" and an industrial dispute must be a "dispute as to industrial matters which extends beyond the limits of any one State". We should, however, indicate that we see considerable force in the argument of senior counsel for the appellants that Keely J. was in error in making a positive finding that the conference could not have been validly convened under s.27. That argument was based on the inclusion, in the definition of "industrial dispute" in s.4 of the Act, of a "threatened, impending or probable dispute", on cases such as The Queen v. Spicer; Ex parte Seamen's Union of Australia ((1957) 96 C.L.R. 341 at p.346); The Queen v. Gallagher; Ex parte Australian Coal and Shale Employees' Federation ((1966) 115 C.L.R. 335 at p. 340) and on the sometimes discounted fact that the legislative power conferred by s.51(xxxv) of the Constitution extends to conciliation and arbitration for "the prevention" as well as "the settlement" of industrial disputes extending beyond the limits of any one State. As at present advised, we incline to the view that the material before Keely J. did not warrant a finding by his Honour that Alley J. had acted without authority in convening the conference.

STATEMENT OF CHARGE

In pursuance of 0.40 r.6 of the Federal Court Rules, the respondents filed a "Statement of Charge" setting out particulars of the acts alleged against each of the Federation, Mr. Gallagher and Mr Boyd. The one Statement of Charge was filed against them and the three other persons (Messrs. Donnelly, Tate and Bingham) who, as has been mentioned, were also charged with criminal contempt and found by his Honour to be not guilty. Its content was as follows:

"Between the 5th April 1982 and the 21st April 1982 the Respondents have and each of them has committed contempt of the Federal Court of Australia by interference with the course of justice.

PARTICULARS
(a) On the 5th April 1982 each of the Respondents Donnelly, Tate and Boyd procured stoppages of work by all members of the Respondent Federation employed on building operations being conducted on the following sites:-
(i) 230 Collins Street, Melbourne
(ii) Fitzroy North Primary School
(iii) Williamstown Primary School
(b) On the 16th April 1982 the Respondent Bingham procured stoppages of work by all members of the Respondent Federation employed on building operations being conducted on the site of the Aspendale Special Development School.
(c) At all material times the building operations on each of the said sites were being conducted by H.M. Keast and Sons Pty. Ltd. ("the company").
(d) At all material times Reginald Keast ("Keast") was the Chairman of the Directors of the company.
(e) At the time of procuring those stoppages of work each of the Respondent, Donnelly, Tate, Boyd and Bingham informed servants or agents of the company that the reason for imposing the stoppages was because of Keast being involved in the present proceedings against the Respondent Federation for the cancellation of its registration as an organization under the Conciliation and Arbitration Act 1904 ("the de-registration proceedings").
(f) From the time of the procuring of the stoppages up to the 21st April 1982 no work was done on any of the said sites by any member of the Respondent Federation.
(g) The procuring of the stoppages of work and the continuation of those stoppages was brought about by the Respondent Federation or by the Respondent Gallagher, or by the respondent Donnelly, or by the Respondent Tate, or by the Respondent Boyd, or by the Respondent Bingham, or each of them.
(h) The Respondent Gallagher has stated that the stoppages of work on the said sites were because of Keast being involved in the de-registration proceedings.
(i) The conduct of and the statements made by each of the respondents had the tendency to and were intended to -
(i) constitute a threat to persons participating in or supporting the de-registration proceedings, that they would be injured or victimized for so participating or supporting.
(ii) constitute a threat to persons bringing or intending to bring proceedings in the Federal Court of Australia against the Respondent Federation that they would be injured or victimized for so bringing or intending to bring such proceedings.
(iii) dissuade persons from giving evidence on behalf of the Applicants in the de-registration proceedings or dissuade them from giving evidence unfavourable to the Respondent Federation.
(iv) impose pressure on the applicants in order to influence them in the conduct of the de-registration proceedings or to discontinue the said proceedings".

The transcript indicates that senior counsel for the appellants made clear that objection was taken to any departure by the respondents from the charge of contempt as particularized in the Statement of Charge. The question whether the particularized Statement of Charge was adequate was adverted to by senior counsel for the respondents but no application was made to amend it and it remained unaltered in the form set out above. In these circumstances, the appellants were entitled to conduct their case on the basis that the only charge which they were required to meet was that which had been particularized against them. It is not for an appellate court to speculate whether, if the charge against a particular appellant had, either initially or by amendment, been differently framed or particularized, the evidence adduced would have been the same or the conduct of the particular appellant's case would have been unaltered.

It should also be mentioned that it was not argued on behalf of the respondents that, if the finding of guilt made by Keely J. could not be sustained in the case of any appellant, some other finding of guilt of a charge within the Statement of Charge should be substituted at this stage. The appeal, in the case of each appellant, falls to be determined by reference to the charge, as particularized in the Statement of Charge, which the relevant appellant was called upon to meet and to the finding of guilt which his Honour made.

We turn to consider the attack made by each of the Federation, Mr. Gallagher and Mr. Boyd on Keely J's finding that it or he was guilty of contempt of court. We shall consider the case of each appellant separately.

THE FEDERATION

The acts of the Federation which constituted the basis of Keely J's finding that it was guilty of contempt of court were within the ambit of the particularized charge against it. They were summarized in the following two paragraphs from his Honour's judgment:

"The Federation's conduct, as established by the evidence, included its decision to impose a ban on the work being performed at the company's building sites, its action in sending its organizers to those building sites for the purpose of bringing about the cessation of work at those sites, the statements on its behalf made by Mr. Boyd on 8 April, 1982 and the statements on its behalf made by Mr. Gallagher on 14 April, 1982, to which I have already referred. Those statements were made in the presence of the representative of the Master Builders' Association of Victoria and the company.
On all the evidence I am satisfied beyond reasonable doubt that the Federation's conduct was partly for the purpose of dissuading persons from giving evidence on behalf of the applicants in the deregistration proceedings or, if it failed in that purpose, of dissuading them from giving evidence unfavourable to the Federation and also partly for the purpose of inducing those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. I also am satisfied beyond reasonable doubt that, viewed objectively, the Federation's conduct had the tendency to so dissuade persons who are potential witnesses and also the tendency to induce the Master Builders' Associations to discontinue as applicants. . . . ."

In our view, nothing advanced on behalf of the appellants vitiates the course of reasoning which led to the conclusions expressed in the above two paragraphs. We can see no ground for disagreeing with those conclusions. To the contrary, we consider that they were justified and, indeed, inevitable on the evidence. To the above comments of his Honour we would add express reference to one matter which appears from his findings of fact and is plainly established by the evidence. The purposes to which his Honour referred were, in one sense, indirect or ulterior purposes of the Federation in the actual imposition of the bans. The direct and immediate purpose of the imposition of the bans was to cause financial damage to H.M. Keast & Sons Pty. Limited as a form of punishment or retribution for the suggested involvement of Mr. Reginald Keast, a former President of the Master Builders' Federation of Australia, in the institution of the deregistration proceedings.

In Littler v. Thomson ((1839) 2 Beav. 129 at p. 131; 48 E.R. 1129) Lord Langdale M.R. said:

"If parties in the prosecution of their rights are to be exposed to this species of attack, and are to be placed in such a situation that they cannot safely proceed in the defence of their rights, and if witnesses are in this way deterred from coming forward in aid of legal proceedings, it will be impossible that justice can be administered. It would be better that the doors of the Courts of Justice were at once close".

In our view, Lord Langdale's comments are as valid today as they were when he made them some one hundred and forty years ago.

The imposition or threat of industrial sanctions to dissuade potential witnesses from giving evidence or to punish someone for proper involvement in judicial proceedings constitutes an attack on the functioning of the judicial system and an affront to the object and purpose for which courts are established. To the extent that such actions achieve their ends of dissuasion or intimidation, justice in the courts is tainted or access to justice in the courts is obstructed or denied. The actions of the Federation in seeking retribution against H.M. Keast & Sons Pty. Limited on account of Mr. Keast's supposed involvement in the deregistration proceedings and in seeking to dissuade potential witnesses in those proceedings from giving evidence unfavourable to it were calculated and designed to hinder and pervert the administration of justice in the deregistration proceedings. They constituted gross contempt of this Court.

MR. GALLAGHER

The main attack which is made, on Mr. Gallagher's behalf, on his Honour's finding that the charge of criminal contempt had been made good against him is that Mr. Gallagher has been found guilty and punished for conduct amounting to contempt of court with which he was never distinctly charged. That attack may, in the circumstances of the present case, be a technical one with little to recommend it in so far as the general merits are concerned. The question which it raises is, however, a fundamental one.

It is a well recognized principle of law that "no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated" (In re Pollard (1868) L.R. 2 P.C. 106 at p. 120; Coward v. Stapleton (1953) 90 C.L.R. 573 at pp. 579-580). This principle of law is recognized by 0.40 rr. 6 and 8 of the Federal Court Rules which require that, on a proceeding for punishment of an alleged contempt, 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" and served personally on the accused person.

The only reference to Mr. Gallagher in the particulars of the Statement of Charge are to be found in clauses (g), (h) and (i) (supra). Strictly construed, clause (g) contains no positive allegation whatsoever against Mr. Gallagher: only two of seven postulated alternatives would involve him in procuring the stoppages of building work and their continuation. It would seem, however, that clause (g) has been understood by the parties as containing a positive allegation that Mr. Gallagher was so involved. Clause (h) is restricted to an allegation that Mr. Gallagher "has stated that the stoppages of work on the said sites were because of Keast being involved in the de_registration proceedings". This alleged statement corresponds with the alleged statements made by the individual union organisers at the time the bans were procured (see clause (e)). The only other allegation against Mr. Gallagher is the general one in clause (i) as to the intended "tendency" of the alleged acts and statements.

The evidence against Mr. Gallagher was quite limited. It consisted, in essence, of background evidence that he was the General Secretary of the Federation and the Secretary of the Victorian Branch and that he was the person whom Mr. Keast would "pick out" as the principal person who represented the B.I.F. on the occasions when Mr. Keast "came into contact with the Federation" and of evidence of some statements that had been made. Mr. Boyd made some statements concerning Mr. Gallagher in the Commission on 8 April, 1982. Otherwise, the statements relied on were those made by Mr. Gallagher to Mr. Ainsworth on 5 April, 1982 and in the private conference in the Commission on 14 April, 1982 (see Findings of Fact, supra, paras. 6 and 9).

The detailed finding that Mr. Gallagher had been guilty of contempt of court is set out in the following passage from his Honour's judgement:

"I also am satisfied beyond reasonable doubt that the statements by the respondent Gallagher on 14 April, 1982, to which I have already referred, and which were made in the presence of the representative of the Master Builders' Association of Victoria and the company were made by him partly for the purpose of dissuading persons from giving evidence on behalf of the applicants in the deregistration proceedings or, if he failed in that purpose, dissuading them from giving evidence unfavourable to the Federation and also partly for the purpose of inducing those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. Mr. Keast gave unchallenged evidence that, "Mr. Gallagher made a statement to the effect that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation". In my opinion Mr. Gallagher there made it clear that his actions were intended by him to induce the Master Builders' Associations throughout Australia to withdraw from their role as joint applicants in the deregistration proceedings. Again, I am satisfied beyond reasonable doubt that those statements by Mr. Gallagher on 14 April, 1982, viewed objectively had the tendency to so dissuade persons who are potential witnesses and also the tendency to induce the Master Builders' Associations to discontinue as applicants. Accordingly, I find that the second-named respondent, Norman L. Gallagher, has committed contempt of the Federal Court of Australia by interfering with the course of justice".

It is clear from the above passage that his Honour found that the actual making of the three statements at the conference on 14 April, 1982 (see Findings of Fact, supra, para. 9) constituted, at the least, an important ingredient of the finding that Mr. Gallagher was guilty of contempt of court. It is arguable that the statement of opinion, that "Mr. Gallagher there made it clear that his actions" (underlining added) were intended to have certain consequences, indicated a finding by his Honour that the unspecified "actions" also constituted contempt of court by Mr. Gallagher. His Honour's judgment does not, however, expressly identify any such other actions as constituting contempt of court by Mr. Gallagher and it would seem that his Honour considered it unnecessary to do more than find that the statements made on 14 April, 1982 themselves constituted contempt of court. To put the matter differently, we consider that, if his Honour had intended to make positive findings that he was convinced beyond reasonable doubt that Mr. Gallagher had been himself guilty of committing other actions which constituted criminal contempt of court, he would specifically have identified what those actions were. We are strengthened in that conclusion by the fact that we consider that Mr. Gallagher's alleged reference to "his" actions in his answer to a specific question asked by Alley J. at the private conference cannot, when fairly placed in context, be interpreted as a reference to Mr. Gallagher's personal actions or as constituting a proper basis, in criminal proceedings, for a positive finding that the imposition and continuation of the stoppages should be seen as Mr. Gallagher's personal actions. In that regard, it should be mentioned that the only evidence as to the interchange between Alley J. and Mr. Gallagher is that of Mr. Keast who made it clear that it appeared to him that Mr. Gallagher was representing the Federation and who did not purport to recount what was said in direct speech. The critical sentences in his evidence, in affidavit form, are:

". . .Mr. Justice Alley again asked Mr. Gallagher what he expected to achieve by his actions against the company. Mr. Gallagher made a statement to the effect that he expected his actions would achieve . . .".

It is plain that, in the above exchange, Alley J. would not have used the word "he" and Mr. Gallagher would not have used the word "his". In so far as Alley J's comment is concerned, one would doubt whether he would inquire of a representative of the Federation what the representative personally, as distinct from the Federation, intended to achieve by industrial action which was clearly seen as the Federation's industrial action. Unless Alley J. used the archaic "thou", it is apparent that, presuming that he used a second person pronoun, the word he used was "you" which was, in the context, not inappropriate to refer to the Federation. Indeed, the statement that "Mr. Justice Alley again asked" refers back to Mr. Keast's evidence that Alley J. opened the private conference by asking Mr. Gallagher "what the B.L.F. hoped to achieve by the actions against the company". In the circumstances, Mr. Keast's evidence of Mr. Gallagher's reply could well be his interpretation of an answer consisting of no more than a bare list of objectives. Be that as it may, it would, in our view, be quite unjustifiable to hold that Mr. Keast's plainly questionable interpretation of what was said by Alley J. and by Mr. Gallagher constituted an adequate basis for a finding that it had been proved beyond reasonable doubt, in proceedings for criminal contempt of court, that Mr. Gallagher should personally be held responsible for either all the actions involved in the imposition of the Federation's bans or for an unidentified one or more of those actions.

It follows that, as we read Keely J's judgment, the finding that Mr. Gallagher was guilty of contempt of court rests squarely on the actual making by him of the statements which he made at the private conference before Alley J. Those statements, as has been mentioned, were made by him as a representative of the Federation and in answer to specific requests for information which had been made by Alley J. One would expect that, if it were intended to charge that the actual making of statements in a particular private conference in the Commission constituted contempt of the Federal Court, that charge would be plainly spelt out in the Statement of Charge. In fact, one seeks in vain, in the particularized Statement of Charge, for any reference at all either to the Commission or to the 14th April, 1982. One also seeks in vain for any conceivable reference to two of the three specific statements which his Honour found had been made by Mr. Gallagher at the private conference (see Findings of Fact, supra, paras. 9(b) and (c)) and upon the making of which his Honour relied in the above passage from his judgment. The only arguably relevant allegation in the particularized Statement of Charge, namely, that "Gallagher has stated that the stoppages of work on the said sites were because of Keast being involved in the de-registration proceedings" (para. (h)), are more obviously referable to what Mr. Gallagher said to Mr. Ainsworth ("that the bans were imposed 'because an executive of the company, Mr. Reg Keast, was the driving force behind the move to de-register the Federation'") than to the other of the three statements made by Mr. Gallagher at the conference of 14 April, 1982 ("that since Mr. Reginald Keast was involved on the employers' committees that instigated the deregistration proceedings against the union and the Royal Commission, the company was the first on the union's list": see Findings of Fact, supra, para. 9(a)).

The conclusion which we have reached is that the particularized Statement of Charge contained no distinct statement of the particular charge of contempt of court which his Honour found to have been proved against Mr. Gallagher. On any fair reading of its terms, the particularized Statement of Charge failed completely to allege against Mr. Gallagher that the actual making of the three statements on which his Honour relied (see Findings of Fact, supra, para. 9) constituted, when the three statements are viewed together, contempt of court. At best, the particularized Statement of Charge contained a general reference to one of the three statements which Mr. Gallagher was found to have made on that occasion. Analysis of the evidence, indicates that even that allegation in the Statement of Charge was more appropriate to refer to what Mr. Gallagher had said on 5 April, 1982 than to what he said on 14 April, 1982. In any event, we do not read the critical passage in his Honour's judgment (supra) as containing any finding that the making of that statement in answer to Alley J's question as to "what the B.L.F. hoped to achieve" constituted, on its own, contempt of court. As has been mentioned, it was not suggested, on behalf of the respondents, that this Court should substitute for his Honour's finding of contempt some new finding within the Statement of Charge.

It is possible that the result of the proceedings against Mr. Gallagher would have been the same if the charge of which his Honour found him guilty had been, either initially or as the result of amendment, plainly and distinctly specified in the particularized Statement of Charge. It is possible that, if he had thought it necessary so to do, Keely J. would have found that Mr. Gallagher was guilty of contempt of court by reason of his involvement in the imposition and continuation of the bans. Disregard of the procedural safeguards which the law requires to be observed in proceedings for criminal contempt of court cannot, however, be ignored by an appellate court for the reason that it is of the view that it is probable that no harm was done or that the accused person would probably have been found guilty in any event. Indeed, as we followed the argument, a contrary view was not propounded by the respondents on the hearing of the appeal.

In the result, the finding that Mr. Gallagher was guilty of contempt of court and the consequential orders for his imprisonment must be set aside.

MR. BOYD

His Honour's finding that Mr. Boyd was guilty of contempt of court is contained in the following passage from his judgment:

"As to the fifth-named respondent, B. Boyd, I am satisfied beyond reasonable doubt that both his conduct on 5 April, 1982 on the building site at 230 Collins Street, Melbourne, and his statements at the Arbitration Commission hearing on 8 April, 1982, to which I have already referred, constituted contempt of the Federal Court of Australia by interfering with the course of justice. On 5 April, 1982 he was the first person to implement the ban on a site being directly responsible for Federation members "being sent home" and he was the first person to tell the company "the reason for the union's action". On 8 April, 1982 he represented the Federation and told the Master Builders' Association of Victoria, the company and the Arbitration Commission that "we will take the battle right back to the employer". I am satisfied beyond reasonable doubt that Mr. Boyd's conduct on both of those days was intended by him to dissuade persons from giving evidence on behalf of the applicants in the deregistration proceedings or if he failed in that purpose, to dissuade them from giving evidence unfavourable to the Federation and was also intended to induce those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. Again, I am satisfied beyond reasonable doubt that that conduct, viewed objectively, had the tendency to so dissuade persons who are potential witnesses and also the tendency to induce the Master Builders' Associations to discontinue as applicants. Accordingly, I find that the fifth-named respondent, B. Boyd, has committed contempt of the Federal Court of Australia by interfering with the course of justice".

As we read the above passage, his Honour found Mr. Boyd guilty of contempt of court on two distinct, albeit related, grounds. The first ground was his involvement in the imposition of the bans at 230 Collins Street on 5 April, 1982. The second was the making of the statements which he made in the Commission on 8 April, 1982.

The Statement of Charge contains no reference whatsoever to the statements made by Mr. Boyd in the Commission on 8 April, 1982. Senior counsel who appeared for the respondents fairly conceded that the particulars of charge would not convey "the faintest inkling" that it was alleged against Mr. Boyd that what he said on 8 April, 1982 constituted contempt of court. In so far as his Honour's finding that Mr. Boyd was guilty of contempt of court rests on those statements, it cannot stand.

We have been troubled as to whether the finding that Mr. Boyd was guilty of contempt of court should be affirmed solely on the basis of his Honour's findings as to his involvement in the imposition of the bans at 230 Collins Street on 5 April, 1982. We have ultimately come to the view that it should not.

It seems to us that the only matter of real significance which distinguishes the conduct of Mr. Boyd from that of Mr. Donnelly and Mr. Bingham, in respect of each of whom his Honour found that the charge of contempt of court had not been established, was the statements made by Mr. Boyd in the Commission on 8 April, 1982. It seems to us that the making of those statements on that occasion was seen by his Honour as the critical difference between Mr. Boyd's case and those of Mr. Donnelly and Mr. Bingham and as constituting an essential ingredient of the charge of contempt of court which he found to have been established against Mr. Boyd.

We would set aside the finding that Mr. Boyd was guilty of contempt of court and the consequential order imposing a fine of $500.00.

PENALTY

It was submitted on behalf of the Federation that the penalty which Keely J. imposed on it, namely a fine of $15,000, is manifestly excessive. We are unpersuaded that is so. In our view, the fine of $15,000 was appropriate to the circumstances of the present matter.

It may well be that deregistration proceedings in this Court are, on occasion, instituted in a political and industrial environment which is liable to obscure their nature as judicial proceedings in a court of law. Such a consideration, if established, could, in some circumstances, be relevant on the question of the appropriate penalty for statements or actions which constitute no more than a technical contempt of court. It is not, however, of real significance in a case such as the present where what is involved is a course of conduct which was, as we have said, calculated and designed to hinder and pervert the administration of justice. In any event, it could scarcely be suggested that the Federation was unconcious of the judicial character of the deregistration proceedings. It had itself asserted that judicial character in other proceedings in which it charged that the actions of others constituted contempt of this Court.

ORDER AS TO PAYMENT OF FINE

His Honour's order that the Federation pay a fine of $15,000 provided that that fine should be paid to the Registrar within seven (7) days by the Federation or "by an agent properly authorized in writing" by the Federation "to make such payment on its behalf". His Honour went on to direct that if the Registrar had any doubt as to whether a person seeking to pay the fine was properly authorized, the matter was to be referred to the Court. It was submitted on behalf of the Federation that his Honour's order should be modified by deleting the requirement that the fine be paid either by the Federation or by a duly authorized agent.

The imposition of a fine of $15,000 was properly seen by Keely J. as a punishment of the Federation for its contempt of court. It was competent for his Honour to require that the fine be paid either by the Federation or someone authorized to act on the Federation's behalf in that regard. The desirability of the form of the order which his Honour made was, as his Honour pointed out, underlined in the present case by evidence that Mr. Gallagher had informed the Commission that he expected that the stoppages of work which were imposed in contempt of court "would achieve the payment of fines which had been imposed on members of the Federation with respect to their refusal to give evidence before the Royal Commission".

We can see no ground for interfering with the requirement that the $15,000 fine be paid either by the Federation or its duly authorized agent. To the contrary, we consider that his Honour's order in that regard could well serve as a model in the future.

COSTS

The appellants Mr. Gallagher and Mr. Boyd have succeeded in their appeal. It is, however, apparent that the proceedings against them were, to no small extent, the result of their own irresponsibility and their involvement, by their actions on 5 April, 1982, in the Federation's criminal activities.

In our view, the appropriate order as to costs is that the Federation pay the respondents' costs of the appeal. There should be no order as to the costs of either Mr. Gallagher or Mr. Boyd. The question of the costs of the proceedings at first instance should be left to be resolved by Keely J.