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 of 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 ) S. No. A. 22 of 1984

IN THE MATTER of an

Application by MICHAEL

ANTHONY PRICHARD for an

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 of

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 of 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

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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 of the firm

Johnston Withers McCusker & CO, is guilty of

contempt of this Honourable Court committed in the

face of the Court and or in the precincts of 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 of 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 in that

he improperly accepted for servlce documents

relating to the inquiry without authorisatlon,

contrary to Order 48 Rules 2 and 3 whereby the

applicant for the Inquiry has suffered

prejudice and further costs.

wilful disobedience and contempt of procedure

by not filing notlces of appearance for the

dlrections hearing on 13th November, 1984,

whereby the applicant for the Inquiry	has
suffered prejudice and further costs.

wilful disobedlence in that he McCusker, an

Officer of thls Court is in breach of an

undertaking given accepting service of the

Fart IX Inquiry documents and not being in

attendance at Court on the 13/11/84.

2 . That Mr. P. Heywood-Smith, Solicitor of the firm

Johnston Withers McCusker & CO, is guilty of

contept of this Honourable Court committed in the

face of the Court and or in the precincts of the

Court by: -

(a) contemptuous misconduct w1lful and

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disobedience in that on the 13th November,

1984 he advised the Court that he appeared for

Mr. R.D. Clarke, without filing an appearance

contrary to ORderCsic.3 48 Rule 3 and contrary

to the dlrection of the Deputy Registrars'

notice attached to the application for the

Inquiry, whereby, the applicant for this

Inquiry has suffered prejudlce and further

costs.

contemptuous interference and obstruction with

~udicial matters by deliberately denying on

the 13th November, 1984, that service had been

effected on the State Branch and the Returning has suffered prejudice and further costs.

wilful misconduct and obstruction with

judiclal matter in the prcsence of His Honour Mr. Justice Gray onthe 13/11/84 by subsequently advising the Court after a brief adjournment, that he now had the "permission" of the purported State Branch Secretary to accept service and to appear this day for the

State Branch and the Returning Officer

contrary to and inconslstant with e

by	given	already	undertaken
Heywood-SMlths'Cslc.3 senior partner in the
law firm of Johnston Withers McCusker & Co.
wilful disobedience of the Federal Court and
its rules i.e. Order 48 Rule 3 and contrary to
the "Notice" of the Deputy Registrar of the
Federal Court In that he being an Offlcer of
the Court improperly attended Court on
11/12/84 to represent R. Clarke, D. the
Returnlng Officer and the State Branch when o
notlce of appearance has been filed.

(S.G.D.)

........ ........ .... M.A. Prichard"

Mr. Prichard appeared In person to move the Court. Mr. Ward of

counsel appeared for Mr. McCusker and Mr. Heywood-Smlth.

At L i w ouLseL, Mr. Ward soucjhL L o hLlvc L i w sLdLcmcrlL oL

charge struck out, on the basis that it was bad for duplicity and

uncer h i l l , a11d drd r ~ u L Clibclusc d1lcydLivrls wLich could anluurll Lo

a contempt of court. He drew the attention of the Court to what

was aid by Evatt and Deane JJ. in Australian Buildinq

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Construction Employees' and Builders Labourers' Federation v.

Minister of State for Industrial Relations	(1982) 43 A.L.R. 189,
at p. 208:

"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 (1068) LR 2PC 106 at 120; Coward v. Stapleton (1953) 90 CLR 573 at 579-80) . "

The requirement that the facts constituting an alleged contempt

be "distinctly stated" does not necessarily Import all the law

relating to forms of indictments and informations In the criminal

law. For this reason, and for the reason that the statement of

charge is plainly not drawn by a person with legal qualifications

or experience, I was disposed to take a generous view of the

statement of charge. I ordered that paragraph 2(c) be struck

out, on the basis that it is not arguable that the facts therein

alleged could constitute contempt; if anything, In the context

of the other allegations made, those allegatlons would have

amounted to a correction of what was sald to be an irregular position taken by Mr. Heywood-Smith at a directions hearing. As

to the other allegations, with considerable difficulty it was

possible to construe the statement of charge	as settlng forth an
arguable case of contempt.

Following my ruling on the statement of charge, Mr.

Prichard put his case in support of the motion. He gave evidence

on oath, and called as a witness one Timothy Lawrence Stanley,

who acted as returning officer in the conduct of the election the subject of the inquiry. He also placed reliance on passages from

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the transcript of proceedings in the Court on 13th November 1984

and 11th December 1984, on which dates directions hearings

relating to the inquiry were conducted.

At several points in his case, Mr. Prichard attempted to

rely upon hearsay evidence, and his own prior statements, as to

incidents alleged to have taken place in the South Australia

District Registry of the Court. Objection was taken by Mr. Ward

to each of these attempts, and in each case the evldence was

ruled inadmissible. This matter involves a very serious charge

against two persons who are acknowledged by the statement of

charye to be solicitors; it is proper that those faclng such a

charge should require that it be proved against them by evidence

properly admissible. More than once it was explained to Mr.

Prichard that only those who were actually present in the

registry at the time of the alleged events could give evidence of

those events. Mr. Prichard's response was that no member of the

staff of the registry had been subpoenaed to attend the Court,

and that he was unaware of the names of those allegedly Involved. evidence, although given a short adjournment to facilitate the

attendance of Mr. Stanley. Instead,	he closed his case. Mr.
Ward did not adduce any evidence.

The result is that Mr. Prichard has wholly failed to

make out his case. There is no evidence that Mr. McCusker gave

any undertaking to anybody, or accepted service of any document,

whether in breach of any of the Federal Court Rules or any order

of the Court, with or without any authority, or otherwlse. It

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has not been proved that no notices of appearance were filed for

certaln persons; attention was not even directed to the original

Court file. The Court cannot make its own internal inqulries for

the purpose of ascertaining whether an allegation of contempt 1 s

made out. Such a serious matter must be proved by proper

evidence. There is nothing in the pages of transcript to which denial, deliberate or otherwise, that service had been effected on the South Australian branch of the Federated Clerks Union of

Australia, or on Mr. Stanley. No inferences as to any of these

matters can be drawn from the evidence that is before the Court. of his allegations leads inevitably to the conclusion that his motion for contempt must be dismissed.

In the circumstances of this case, however, mere

dismissal on the grounds that the allegations were not proven is

Insufficient. Mr. Prichard's argument was largely based on the

proposition that the alleged conduct of Mr. McCusker and Mr.

Heywood-Smith constituted a breach of some express or implied

obligation imposed by the Federal Court Rules, and that such

breach was itself contempt of court. The only authorities relied

on for the proposltion that breach of the rules of court was a

contempt of court were passages in the second edition of

Halsburv's Laws of Enqland, and the second edition of Halsburv's

Statutes of Enqland. The fourth edition of Halsburv's Laws of

Enqland does not seem to have continued those statements. On the

contrary, it is suggested that the use of its contempt powers by

a court to enforce its rules is extremely rare. Paragraph 38 of

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volume 9 of the fourth edltion deals with abuse of process as

contempt. After referring to forging or altering court

documents, and other acts of deceit the paragraph continues:

“Certain acts of a lesser nature may also constitute an

abuse of process as, for instance, injtiating or

carrying on proceedings whlch are wanting in bona fides

or which are frivolous, vexatious, or oppressive. In

such cases the court has extensive alternative powers to

prevent an abuse of its process by striking out or

staying proceedings or by prohibi king thP t ,akIng of

further proceedings without leave. Where the court, by

exercising its statutory powers, its powers under rules

of court, or its inherent ~urlsdiction, can give an

adequate remedy, it will not in general punish the abuse

as a contempt of court. On the other hand, where an

irregularity or misuse of process amounts to an offence

against justlce, extending its influence beyond the

parties to the action, it may be punished a a contempt.

Reference should also be made to paragraph 52 in the same volume,

which deals with civil contempt in refusing to obey a judgment or

order of a court, or acting in breach of an undertaking. It may

be that, in certain cases, deliberate and contumelious disregard

of the rules, to the extent of frustrating the operation of the

court in relation to a partlcular case might amount to contempt.

Even taken at their highest, the allegations in the present case

fall far short of this.

Mr. Frichard‘s argument seemed to be that the presence

of a notice endorsed on a copy application served on a person,

warning that person that if no appearance 1 s entered, the

proceeding may be heard and orders may be made in his or her

absence (which notice is required on an application in an

election inquiry by 0. 48 R. 3 ( 2 ) ) imposes a mandatory obligation

on the person receiving it to enter an appearance. Such an

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argument	I s	plainly not sustainable in terms of the notice
itself. In	addition, as Mr. Ward pointed out, 0. 9 R. 2 ( 2 )

specifically provides for the entry of an appearance after the

date appointed for a directions hearing, without leave. Late

entry of an appearance, or failure to enter one at all, could

hardly amount to contempt of court.

In these circumstances, a finding of contempt, even if

the factual allegations had been made out, was extremely

unlikely. The motion is dismissed.