In the Matter of an Application by Michael Anthony Prichard for an Inquiry into an Election in teh South Australian Branch of the Federated Clerks Union of Australia - [1985] FCA 153

CATCHWORDS

Contempt of Court - whether proved - whether breach of Federal

Court Rules

I s contempt of court.

Conciliatlon and Arbitration Act

1904, 5. 160(l)(a).

Federal Court Rules, 0. 40 R. 6, 0. 48 R. 3 ( 2 ) , 0. 9 F..

2 ( 2 ) .

Australian

Euildinq

Constructlon

Employees'

and

Builders

Labourers'

Federation

v .

Minlster

State

for

Industrial

Relations (1982) 43 A.L.R. 189.

IN THE MATTER OF AN AFFLICATION BY MICHAEL ANTHONY FRICHARD F@R

AN INQUIRY INTO

AN ELECTION IN THE SOUTH AUSTRALIAN BRANCH OF THE

FEDERATED CLERKS' UNION

OF AUSTRALIA.

GRAY

J .

27TH FEBRUARY 1985

ADELAIDE.

IN THE FEDERAL COURT OF AUSTRALIA 1

)

SOUTH AUSTRALIA DISTRICT REGISTRY

)

INDUSTRIAL DIVISION

)

No.

22 of 1984

IN THE MATTER of an

Application by MICHAEL

ANTHONY PRICHARD for

JUDGE

GRAY J.

DATE:

27TH

FEBRUARY

1985

EX TEMPORE REASONS FOR JUDGMENT

This is the return of

a notice of

motion, dated 30th

January 1985, calling upon Peter McCusker, and Paul Heywood-Smlth

to show cause why they should not be dealt with for contempt

court, alleged to have been committed "on or around the 5th and 13th day of November 1984". The notice of motion was filed by Michael Anthony Prichard, who applied to the Industrial Registrar

on 30th August 1984

for an inquiry into an election In the South

Australian branch of the Federated Clerks Union

Australla.

That application was dealt with by the Industrial Registrar

pursuant to S . 160(l)(a) of the Conciliation and Arbitratlon Act

1904; on 25th October 1984

the matter was referred to the Court.

When it was first

filed, the notice

of motion did not

- 2 -

have subscribed to it, or

filed with it, a statement of charge,

as requlred by Order

40 Rule 6 of

the Federal Court Rules. On

14th February 1985 the Court directed Mr. Frlchard to file and

serve such a statement. It

is convenlent to set out In

full the

statement filed and served by Mr. Prichard	as a result of that
direction:

"STATEMENT OF CHARGE

1. That Mr. P. McCusker,

Solicitor

the

firm

Johnston

Withers

McCusker

& CO, is guilty

contempt of this Honourable Court committed in the

face of the Court and or in the precincts

the

Court

bv: -

contemptuous

interference

with

judlcial

matters wlthin the election inqulry in that he

on or around the

5th day of November.

1984,

improperly accepted and undertook service of

documents i.e. copies of the application with

attached "Notlce from the DeputyIRegistrar of

the Federal Court Adelaide, on behalf of the

State

Branch

the

Clerks'

Union, the

Returnlng

Officer

and

Mr.

R.D.

Clarke,

contrary to Order

48 Rule 2 (2)(b)(ii), and

Order 48 Rule 3

(1) and contrary to an

order

by His

Honour

Mr.

Justice

Gray

that

the

applicant	for	the	inquiry	serve	certaln
persons.

Misconduct and contempt in procedure

that

he	improperly accepted for servlce documents

relating to the inquiry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading In the Matter of an Application by Michael Anthony Prichard...

Details

AGLC: In the Matter of an Application by Michael Anthony Prichard for an Inquiry into an Election in teh South Australian Branch of the Federated Clerks Union of Australia [1985] FCA 153
Case: [1985] FCA 153
Decision Date: 27 Feb 1985

CaseChat Overview and Summary

In this case, Michael Anthony Prichard filed an application for an inquiry into an election within the South Australian Branch of the Federated Clerks Union of Australia. Prichard alleged that Peter McCusker and Paul Heywood-Smith, both solicitors, had committed acts of contempt of court. The primary legal issues were whether the alleged conduct of McCusker and Heywood-Smith amounted to contempt of court and whether they had breached any Federal Court Rules. The court had to determine if the allegations made by Prichard were substantiated by admissible evidence.

Gray J reviewed the statement of charge filed by Prichard and found it to be poorly drafted, lacking clarity and precision. The court ordered certain paragraphs to be struck out as they were not arguable or relevant to the charges of contempt. Prichard presented his case with limited admissible evidence, and the court ruled out hearsay and prior statements due to their inadmissibility. Ultimately, Prichard failed to provide sufficient evidence to prove the allegations against McCusker and Heywood-Smith. The court concluded that the allegations of contempt were not substantiated and dismissed the motion on the grounds that the allegations were not proven. Furthermore, the court found that the alleged breaches of Federal Court Rules did not, in themselves, constitute contempt of court.

Orders