Howard, R.C. v Gallagher, N.L

Re: ROBERT CHARLES HOWARD
And: NORMAN LESLIE GALLAGHER
Nos. V12, 13 of 1986
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Keely(2) and Gray(3) JJ.

CATCHWORDS

Industrial Law - Conciliation and Arbitration Act 1904 - whether informations for offences under s.182 of the Act disclose an offence - indictable offences - effect of s.191 of the Act - whether the trial of such offences should be trial by jury - whether institution of proceedings against defendant constitute an abuse of process of the Court - whether leave to appeal should be granted.

Acts Interpretation Act 1901 ss.26,42

Building Industry Act 1985 ss.4,5,6

Conciliation and Arbitration Act 1904 ss.4,118A,126,182,191

Constitution s.80

Crimes Act 1914 s.13

Federal Court of Australia Act 1976 s.4,19,40

Federal Court Rules O.4 r.16, O.20 r.2, O.49

Judiciary Act 1903 ss.39,68,78A,78B

HEARING

MELBOURNE

#DATE 25:3:1988

Counsel for Prosecutor: Mr. R. Tracey

Solicitor for Prosecutor: Crown Solicitor

Counsel for Defendant: Mr. E.F. Hill and Mr. M. Strong

Solicitors for Defendant: Messrs. Holding Redlich

ORDER

The defendant have leave to appeal from the order made on 27 October 1986 and the appeal be dismissed.

The defendant have leave to appeal from the order made on 17 July 1987 and the appeal be dismissed.

(Settlement and entry of Orders is dealt with in O.36 of the Rules of Court.)

JUDGE1

The main issues raised by these applications for leave to appeal and, if leave is granted, the appeals are first whether the informations for offences under s.182 of the Conciliation and Arbitration Act 1904 with which Norman Leslie Gallagher is charged disclose an offence, and if so, whether the trial of those offences should be trial by jury. Another issue raised is whether the institution of the proceedings against Gallagher constitutes an abuse of process with the result that the informations should be quashed or the summonses stayed.

1. The way in which these matters came before a Full Court are complex and need not be related. Reference will be made to the relevant statutory provisions and facts to explain the main issues.

2. Sub-section 182 of the Conciliation and Arbitration Act provides:-
   
   

"182. (1) A person shall not -

(a) wilfully insult or disturb a member of the Commission when exercising powers or functions;

(b) interrupt the proceedings of the Commission;

(c) use insulting language towards a member of the Commission; or

(d) by writing or speech use words calculated -

(i) to influence improperly a member of the Commission or a witness before the Commission; or

(ii) to bring a member of the Commission or the Commission into disrepute.

Penalty:$500 or imprisonment for 12 months, or both."

By reason of s.42 of the Acts Interpretation Act 1901, the offence created by sub-section 182(1) is an indictable offence. That section provides:-

"42. Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences."

The relevant part of s.80 of the Constitution provides:-