Marsh v Adamson

[1985] FCA 71

Re: RALPH BENSON MARSH and CHARLES BALI
And: ROBERT McCOLL ADAMSON
No. 37 of 1984
Industrial Law
10 IR 47

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
St. John J.
Northrop J.
Wilcox J.

CATCHWORDS

Industrial law - appeal from refusal to set aside subpoenas issued in the course of an inquiry pursuant to Part IX of the Conciliation and Arbitration Act 1904 - competency of appeal - whether application to set aside subpoena is a separate proceeding or step in the course of existing proceeding.

Inquiry into election - allegations that election material issued by candidates falsely represented his political allegiance - application to set aside subpoenas to produce records relating to election spending - competency of appeal from refusal of application - meaning of "irregularity" under Part IX of Conciliation and Arbitration Act 1904.

Conciliation and Arbitration Act 1904 ss. 4, 11, 13, 118B(1) and Part IX

Federal Court of Australia Act 1976 ss. 4, 24(1A), 59 Rules of Court 0.27 rr.2, 6 and 9, 0.48

HEARING

SYDNEY
#DATE 11:3:1985

ORDER

1. The appeal be dismissed.

2. The question of costs be reserved.

JUDGE1

We agree with the conclusion reached by Northrop, J. that this appeal should be dismissed for the reasons set out in his judgement, which we have had the advantage of reading.

As to the argument that, even if proved, the allegations made to support the enquiry into the relevant election could not amount to an "irregularity", we propose to make some comments, although such comments are clearly obiter dicta. The question was fully and ably argued before us and, in those circumstances, comment is not inappropriate.

It is not desirable to speculate about the factual findings that might be made by the learned judge conducting the enquiry. It is sufficient to say that there are allegations -- the accuracy of which have yet to be tested -- to suggest that the election material distributed by Mr. Bali was false in that it represented him to be a member of the Australian Labor Party with allegiance to its principles and platform when, in fact, his allegiance was to the National Civic Council, by which his election campaign was funded, and that the National Civic Council was an organisation proscribed by the Australian Labor Party.

It was submitted by counsel for the appellant that the relevant definition of "irregularity" in the Conciliation and Arbitration Act 1904 (the text of which is set out by Northrop, J.) was an exhaustive definition, limited to the specific circumstances referred to therein, or alternatively was to be read as merely incorporating such of the common law principles relating to elections as were appropriate. We see no merit in this submission. The history of the common law and the statutory position of trade unions was recorded by Kitto, J. in Victorian Employers' Federation v. Federal Commissioner of Taxation (1957) 96 C.L.R. 390 at 393 where it is pointed out that any imposition of restrictions on the conduct of trade or business was an unreasonable restraint of trade and void. See also per Fullagar, J. in Williams v Hursey (1959) 103 C.L.R. 30 at pp 61-63. The imposition of such restrictions by trade unions caused the common law to regard trade unions as "unlawful associations". The very purpose of the enactment of the Conciliation and Arbitration Act 1904 was to substitute, for the common law, statutory provisions under which registered organisations were subjected to a considerable degree of regulation. Under those circumstances, there is no basis for an assumption that the legislative intention was that trade unions in this country in the twentieth century should be governed by common law rules designed for national elections in England in the nineteenth century.

In national and state elections, the political matters canvassed are wide and diverse in content. In union elections issues are, by comparison, much narrower. That party membership is a prime consideration of electors in the electoral process was recognised by Moffitt, P. in Consandine v. Strathfield Municipal Council (1981) 44 L.G.R.A. 435 at 442 in these terms:-

"As legislative and executive power rests upon the party system of politics, the decision of persons to be candidates for election have come substantially to depend on their selection by a political party to stand as its endorsed candidate. For a like reason voting at parliamentary elections has come substantially to depend on voters identifying candidates by their membership of a political party. In consequence many electors vote for a particular candidate because he is a member of a political party which or whose leader has the voter's approval. Thus the decision of an elector as to how he will cast his vote may be simply to vote for a particular political party or group, in the sense that he will vote for those candidates, whoever they are, who are members of that party or group. He may go to the polling booth having decided to cast his vote in this way or as put colloquially to vote for 'X party', so that the only significance of his knowing the identity of particular candidates whose names appear on the ballot-paper will be to provide the means by which he can carry out his decision as to how he will cast his vote."

That case was concerned with a local government election under the Local Government Act 1919 (N.S.W.) with provisions not similar to the definition under review but, as a statement of matters of which judicial knowledge can be taken, it appears accurate to us and in our view applies, at least to some extent, to union elections. It follows that an erroneous belief by an elector as to the party affiliation of a candidate may cause the vote of that elector to miscarry.

Appellants' counsel sought to rely on the decision of the High Court of Australia in Evans v. Crichton-Browne (1981) 147 C.L.R. 169 on the interpretation of paragraph (e) of s.161 of the Commonwealth Electoral Act 1918 which created an electoral offence in the following term:-

"(e) Printing, publishing, or distributing any electoral advertisement, notice, handbill, pamphlet, or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote:"

It is clear, for purposes of comparison of that paragraph with the definition of "irregularity" in the Conciliation and Arbitration Act 1904, that "casting" and "recording" are synonymous.

The allegations in Evans case were that misleading statements were made. They may be broadly summarised by stating that, in the main, they were concerned with the past and future performance of the political parties in government and in opposition in the economic management of the country and the effect of that management on citizens. There were no allegations of misrepresentation of party membership or allegiance. At p. 204 in the joint judgment of the Full High Court it was said of the phrase "in or in relation to the casting of his vote":-

"The use of this phrase in s.161(e) suggests that the Parliament is concerned with misleading or incorrect statements which are intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment."

At pp. 206 and 207, their Honours referred to the drastic effects of a wider interpretation as a reason for rejecting such interpretation and, at p. 207, said:-

"In a campaign ranging over a wide variety of matters, many of the issues canvassed are likely to be unsuited to resolution in legal proceedings; and a court should not attribute to the Parliament an intention to expose election issues to the potential requirement of legal proof in the absence of clear words."

Four comments are appropriate as to why the same reasoning should not be applied in the interpretation of the definition of "irregularity" in the Conciliation and Arbitration Act 1904. The first is that, in Evans case, the identification of a candidate with a particular political party was not before the High Court. Secondly, there is a notable difference in the relevant statutory language. Section 161 of the Commonwealth Electoral Act 1918 employs an exhaustive list of irregularities none of which was found, in Evans case, to be applicable, as a matter of construction, to the facts of that case. By contrast the definition of "irregularity" in s.4 of the Conciliation and Arbitration Act 1904 is stated as a non-exhaustive definition. Thirdly, the circumstances in which ballot papers are received by electors, the opportunities for campaigning by candidates and the publicity generated by such elections, are very different in a union election, as compared to a national or state election. Campaigning by union candidates is usually by post. There is a widespread practice of disseminating election material by post and other means shortly before the elector receives his ballot paper. Opportunity for denial or refutation of misleading statements is markedly limited. In contrast with the situation appertaining to Parliamentary elections there is, in many cases, no press, radio or television publicity at all. Finally, the obvious reluctance of courts to canvass issues raised in national and state election campaigns has been influenced by the political philosophy of the separation of powers into legislative, executive and judicial, and the adoption of that philosophy as a basic legal doctrine. The Conciliation and Arbitration Act 1904 gives this Court wide supervisory powers over organisations (which, of course, include trade unions) and it is not inhibited by that doctrine.

These points of distinction lead us to the view that Evans case has no application to a union election and that the learned judge investigating this election could find that the allegations, if proved, may constitute an "irregularity" within the meaning of the definition in the Conciliation and Arbitration Act 1904. We would emphasise, from both courtesy and principle, the wide discretion with which that judge is entrusted and stress that we do not seek to influence its exercise.

JUDGE2

In the course of an inquiry being conducted by the Court under Part IX of the Conciliation and Arbitration Act 1904 ("the Act"), Robert McColl Adamson ("Adamson") caused subpoenas to be issued directed to Charles Bali ("Bali"), a party to the inquiry, and Ralph Benson Marsh ("Marsh") who was not a party to the inquiry, requiring each of them to produce specified documents to the Court. By motion Bali and Marsh each sought orders which can be summarized as follows:

1. that a question of law, namely whether the facts relied upon by Adamson in his application for the inquiry could constitute an irregularity under the Act, be determined separately from and prior to any other question in the inquiry;

2. that the Court not proceed with the inquiry on the basis that it was not satisfied that there was reasonable ground for the inquiry; and/or

3. that each of the subpoenas be set aside on the grounds that each was vexatious, oppressive, too wide, or an abuse of process.

The Court conducting the inquiry heard submissions on the motion and on 2 November 1984, by order, refused each of the three orders sought. On the same day, the Court adjourned the further hearing of the inquiry to a date to be fixed.

By the one notice of appeal dated 9 November 1984 and filed in the Court on 23 November 1984, Bali and Marsh appealed from so much of the order made on 2 November 1984 which refused to set aside each of the subpoenas to produce documents. Strangely, by their notice of appeal, Bali and Marsh, in addition to seeking orders that each of the subpoenas be set aside, sought further orders that the facts relied upon by Adamson in his application for the inquiry could not, as a matter of law, disclose an irregularity under the Act and that the inquiry be terminated.

By application dated 23 November 1984 and filed in the Court on the same day, Bali and Marsh sought leave to appeal from the orders made on 2 November 1984.

The appeal and the application for leave to appeal came on for hearing before a Full Court on 11 February 1985. Bali and Marsh were respresented by counsel. Adamson was represented by counsel. Counsel appeared for the Amalgamated Metals Foundry and Shipwrights Union ("the organization"), a party to the inquiry, but which had not been named as a party to the appeal. The organization's interest in the inquiry is similar to the interest of Adamson. Counsel for Bali and Marsh objected to the appearance by the organization, but having regard to 0.52 r.14 of the Rules of Court, the Court permitted the appearance on behalf of the organization. Strangely, Adamson did not move on notice for an order dismissing the appeal as incompetent, see 0.52 r.18, but the question of the competency of the appeal was an issue raised on the appeal.

Before the Full Court three main issues were raised by counsel for Bali and Marsh, namely:

1. Is the appeal competent?
2. Is leave to appeal necessary?
3. Do the subpoenas relate to an irregularity under the Act?

It is noted that the third issue relates to an irregularity and not to the issue of whether the subpoenas are vexatious, oppressive, too wide, or an abuse of process. The contention put was that the documents sought to be produced could not relate to an irregularity and therefore the subpoenas should be set aside. To determine that contention the Court would need to consider the substantive matter raised by the appeal.

Submissions were heard by the Full Court on each of those three issues, but the first issue to consider is whether the appeal is competent. In order to determine that issue it is necessary to make some reference to the facts and a more detailed reference to some of the provisions of the Act and of the Federal Court of Australia Act 1976 ("the Federal Court Act"). It must be remembered, however, that the Court conducting the inquiry has heard no evidence going to the substance of the inquiry.

The following facts, in summary form, are taken from the reasons for judgment given by Gray J. on 2 November 1984 when he refused the orders sought by Bali and Marsh. Those reasons contain a full statement of the complex facts of the matter. Adamson and Bali are each members of the organization, an organization of employees under the Act. Between 23 January and 17 February 1984 a ballot was conducted for the election of one person to hold the office of National Organiser - Division 4 within the organization. Adamson and Bali were the two candidates for that position. The election was conducted under s.170 of the Act. Bali was declared elected to the office. During the course of the election, pamphlets were distributed to voters by or on behalf of Bali. For the purpose of deciding whether the appeal is competent, it is not necessary to refer in detail to the contents of those pamphlets, except that they disclosed also that Marsh was supporting the election of Bali. The contents of those pamphlets and other written material are referred to in the reasons for judgment of Gray J. Adamson claimed that the publication of those pamphlets to persons entitled to vote at the election constituted an irregularity in or in connection with the election and lodged an application under sub-section 159(1) of the Act with the Industrial Registrar for an inquiry by the Court into the matter. The particulars of the alleged irregularities as stated in the application were as follows:

"1. The conduct, including advertisements, on behalf of a candidate in the election was misleading and misled voters in the election and thereby caused them to alter their votes, or refrain from voting, which change in voting intention affected the result of the election.

2. A candidate in the election engaged in conduct (including an act, omission or other means) the effect of which is and was to hinder or prevent the full recording of votes by all persons entitled to vote and the correct ascertainment or declaration of the rules of the voting and / or which constituted an irregularity.

3. A candidate in the election, by the use of funds and resources of persons external to the union engaged in conduct the effect of which was and is to hinder or prevent the full recording of votes by all persons entitled to vote and the correct ascertainment or declaration of the results of the voting and/or which constituted an irregularity."

At the request of Bali, Adamson subsequently gave further particulars, but it is not necessary to refer to those particulars for the purpose of deciding the issue of competency.

The subpoenas to produce documents sought the production of documents relating to the funds received and expended by Bali in the election, the source of those funds and dealings with the National Civic Council.

Part IX of the Act, comprising sections 159 to 171 inclusive, is headed "Disputed Elections in Organizations". Under sub-section 159(1) where a member of an organization claims that there has been an irregularity in or in connection with an election for an office in the organization, he may lodge an application for an inquiry by the Australian Industrial Court into the matter. Under sub-section 118A(1) of the Act, the jurisdiction and powers expressed by the Act to be vested in or exercisable by the Australian Industrial Court or a Judge of that Court are vested in and exercisable by the Federal Court of Australia or a Judge of that Court and are exercisable in accordance with the Federal Court Act. Under sub-section 118a(4A) the original jurisdiction of the Federal Court, except that referred to in the sections set out in sub-section 118A(4B), is exercised in the Industrial Division of the Federal Court constituted by a single Judge. Hereinafter in these reasons, a reference to the Court or to a Judge in relation to the Act will be a reference to the jurisdiction and powers conferred upon the Federal Court.

Under sub-section 159(2) of the Act the application must be in writing in accordance with the prescribed form, even though, at the present time, there is no form prescribed for that purpose. The application must be lodged with the Industrial Registrar and must comply with the other requirements contained in the sub-section. Sub-section 159(3) provides that except as provided by sub-section (4), s.159 does not apply to or in relation to an election conducted under s.170. Under sub-section 159(4) an application under s.159 may be made in respect of an election under s.170 if the application is made within a specified time. Where such an application is made:

"(a) the Industrial Registrar shall, notwithstanding the next succeeding section, forthwith refer the application to the Court and thereupon an inquiry shall be deemed to have been instituted;

(b) the Court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application; . . ."

The application by Adamson complied with the relevant requirements of s.159. Since the election had been conducted under s.170 of the Act, the Industrial Registrar referred the application to the Court and therepon the inquiry was deemed to have been instituted. The Industrial Registrar was not required to execise the powers conferred upon him by s.160 of the Act, nor was the inquiry instituted in the Court pursant to s.161 of the Act. As has been said, the inquiry was instituted under paragraph (a) of sub-section 159(4).

Where an inquiry has been instituted, s.162 requires a Judge to fix a time and place for conducting the inquiry and the Judge is empowered to:

" . . . give such directions as he thinks necessary to ensure that all persons who are or may be justly entitled to appear or be represented at the inquiry are notified of the time and place so fixed."

Order 48 of the Rules of Court prescribes matters of practice and procedure in relation to inquiries by the Court under Part 1X of the Act.

Sub-sections 164(1), (2) and (4) and 165(1) and (2) of the Act are set out:

"164.(1) The Court shall allow to appear or be represented at an inquiry all persons who apply to the Court for leave to appear or be represented, being persons who appear to the Court to be justly entitled to be heard, and the Court may order any other person so to appear or be represented.

(2) The persons appearing or represented, or ordered to appear or be represented, at an inquiry shall be deemed to be parties to the proceedings.

. . .

(4) For the purposes of this Part -

(a) the procedure of the Court is, subject to this Act and the regulations, within the discretion of the Court; and

(b) the Court is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just.

165.(1) At an inquiry the Court shall inquire into and determine the question whether any irregularity has occurred in or in connection with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary.

(2) In the course of conducting an inquiry the Court may make such orders (including an order for the recounting of votes) as the Court thinks necessary for the purposes of the inquiry.

. . . "

Under sub-section 165(3), if the Court finds an irregularity has occurred, the Court, subject to sub-section 165(4), may make one or more of specified orders. Sub-section (4) is set out:

"165.(4) The Court shall not declare an election, or any step taken in or in connection with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularies may have occurred or may occur, the result of the election may have been affected or may be affected, by irregularities."

A reference to sub-section 4(1) shows that in the Act, except where otherwise clearly intended, the word irregularity":

". . . in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered;"

A reference to s.4 of the Federal Court Act shows that in that Act, unless the contrary intention appears, the word "proceeding" means:

". . . a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal;"

The word "proceeding" should be given the same meaning when used in the Rules of Court.

Under 0.27 r.2 of the Federal Court Rules, the Court is empowered, in any proceeding, to issue subpoenas to produce documents, and under r.6, the Registrar, unless the Court otherwise orders, is required to issue such a subpoena upon the request of a party to a proceeding. In the present case the subpoenas were issued under 0.27 r.6 on the request of Adamson. Order 48 r.4A recognizes the inquisitorial nature of the inquiry and appears to be a complementary rule empowering the Court, when conducting an inquiry under s.161 of the Act, on its own motion to direct the Registrar to issue a subpoena. The reference in that rule to section 161 appears to be too narrow, since on its face it has no application to the present inquiry which is an inquiry under paragraph 159(4)(a) of the Act. Possibly in that rule, the phrase "Part 1X" should be substituted for the words "section 161".

In the present case, Bali and Marsh moved the Court to set aside the two subpoenas. They relied upon 0.27 r.9. The Court refused to make the orders sought by the motion.

Under paragraph 24(1)(a) of the Federal Court Act, the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge. The order made on 2 November 1984 is such a judgment, but sub-section 24(1A) provides that an appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. The second issue raised by counsel is directed to whether the order appealed from is an interlocutory order under sub-section 24(1A), and if so, whether leave should be granted.

Other limitations on the right of appeal under paragraph 24(1)(a) of the Federal Court Act are imposed by other statutes. Paragraph 118B(1)(a) of the Act imposes such a limitation. The parts of s.118B relevant for present purposes are set out:

"118B.(1) Notwithstanding anything contained in the Federal Court of Australia Act 1976 -

(a) an appeal does not lie to a Full Court of the Federal Court of Australia from a judgment or order of that Court, constituted by a single Judge, in proceedings under section 158P or under Part 1X; and

(b) subject to sub-section (2), an appeal lies to the High Court from a judgment, order or sentence under this Act of a Full Court of the Federal Court of Australia if the High Court grants leave to appeal, but not otherwise.

(2) No appeal lies to the High Court from a judgment, order or sentence of a Full Court of the Federal Court of Australia -

(a) in a matter arising under . . . Part V111, . . . or 1X . . .; or

(b) in respect of a contempt of that Court in relation to proceedings under this Act."

Counsel for Bali and Marsh contended that paragraph 118B(1)(a) has no application to the present appeal since the order appealed from is not an order in proceedings under Part 1X of the Act. They conceded, quite correctly, that the inquiry is a proceeding under Part 1X but contended that the motion to set aside the proceeding was a separate and distinct proceeding not under Part 1X, but under the Federal Court Act. They contended that the motion was a proceeding under 0.27 r.9 of the Rules of Court. That rule, which was made under s.59 of the Federal Court Act, empowers the Court, on motion by the person named in a subpoena, to set aside the subpoena wholly or in part. They contended that the documents which the subpoena sought to have produced do not relate to matters which may be the subject of an inquiry under Part 1X of the Act. They sought to rely upon opinions expressed in The State of Victoria v. The Australian Building Construction Employees and Builders Labourers' Federation (1982) 152 C.L.R. 25 ("the B.L.F. case").

In the B.L.F. case, the High Court considered a number of separate proceedings. It is not necessary to identify each of those proceedings, but the relevant facts can be stated shortly. A Royal Commission was being conducted into whether an organization of employees or its officers had engaged in activities contrary to law. Evidence was being presented to the Royal Commission in public hearings. Proceedings had been commenced in the Federal Court seeking the deregistration of the organization under s.143 of the Act, being a section within Part V111 of the Act. Many of the matters being inquired into by the Royal Commission were matters in issue in the deregistration proceedings. The organization claimed that the conduct of the Royal Commission in hearing evidence in public constituted a contempt of court and by motion in the court proceedings sought an injunction restraining the Royal Commission from continuing to hear the evidence in public. The Court, constituted by a single Judge, refused to grant an injuction. The organization appealed to a Full Court of the Federal Court which allowed the appeal and granted the injunction; see (1981) 53 F.L.R. 396. One of the proceedings before the High Court in the B.L.F. case was whether paragraph 118B(2)(a) of the Act prevented an appeal to the High Court from the order of the FulL Court, since s.143 of the Act is within Part V111 of that Act.

The High Court held that the appeal to the High Court was competent and not barred by paragraph 118B(2)(a) of the Act, since the order of the Federal Court was concerned with a contempt of the Court under s.31 of the Federal Court Act, and thus was not a matter arising under Part V111 of the Act. That aspect of the appeal is discussed by Gibbs J. commencing at p.41. After stating that the objection to competency of the appeal was taken on two grounds, the first being that the appeal was in a matter arising under Part V111 of the Act and was thus prohibited by paragraph 118B(2)(a) of the Act, said at pp.41-2:

"It is clear that the first ground of the objection cannot succeed. The order from which the present appeals are brought is not an order in a matter arising under Pt V111 of the Act. It is true that s.143, under which the application for cancellation of the registration of the Federation was made, forms part of Pt V111. However the application for an injuction to restrain Mr. Winneke from proceeding with the inquiry - the relevant 'matter' - did not arise under that section. Nothing in Pt V111 gives power to deal with a contempt of court or to grant an injunction to restrain an apprehended contempt of court. As will be seen, the power to grant such an injunction must be sought in the Federal Court of Australia Act 1976 (Cth), as amended. The order of the Full Court of the Federal Court was not in a matter arising under Pt V111 simply because it was made in a proceeding which for administrative purposes was given the same number as the proceeding under Pt V111 or because it related to the proceeding under Pt V111."

The matter is discussed by Mason J. commencing at p.83. At p.86, he said:

"It was suggested that the appeals are also excluded by par. (2)(a). The proceedings under s.143 for deregistration are procedings under Pt V111. However, the contempt proceedings are not proceedings under Pt V111 or indeed under the Act at all. For this reason par. (2)(a) has no application."

The matter is discussed by Aickin J. commencing at p.114. At p.116 he said:

"The relevant part of sub-s. (2)(a) is the reference to Pt V111 which deals with registered organizations and includes s.143 which deals with applications for cancellation of registration of industrial organizations. It is however clear that the present 'matter' does not arise under Pt V111. A proceeding (but not this proceeding) has been instituted under Pt V111 but the 'matter' before the Full Court did not arise under Pt V111. This proceeding arose under ss.24 and 31 of the Federal Court of Australia Act. Section 24 gives a right of appeal from a decision of a single judge to the Full Court, and s.31 gives to the Federal Court power to punish for contempt, but subject, in the case of jurisdiction derived from Pt VA of the Conciliation and Arbitration Act, to the provisions of that Part. The 'matter' before the single judge, Northrop J., may be said to have had a connexion with, but was not part of, the application made by the Minister and others to the Federal Court for an order under s.143 of the Conciliation and Arbitration Act directing the Industrial Registrar to cancel the registration of the B.L.F. That application did arise under Pt V111 because s.143 is in Pt V111."

By analogy, counsel for Bali and Marsh contended that the motion to set aside the subpoenas was not a proceeding under Part 1X of the Act.

That contention is rejected. Even apart from the meaning attributed to the word "proceeding" by s.4 of the Federal Court Act, that word should be construed as including a step in the course of or in connection with an existing proceeding. Thus, it is perfectly correct and normal to describe a procedural step taken in the course of an existing proceeding as a proceeding in the existing proceeding. Under paragraph 164(4)(a) of the Act the procedure of the Court in conducting the inquiry is within the discretion of the Court. The issue of a subpoena to produce documents is a procedural step in the existing proceeding. This is made clear by 0.27 of the Rules of Court. A motion to strike out a subpoena, likewise, is a procedural step in an existing proceeding. In each case, the jurisdiction of the Court to hear and determine the existing proceeding must be found in a law made by the parliament; see sub-section 19(1) of the Federal Court Act. In the present case, the relevant law is that contained in Part 1X of the Act; see also s.118A of the Act. The only source of the power of the Court to conduct the inquiry is under Part 1X of the Act.

A proceeding for contempt of court is very different in nature. It is not a procedural matter in an existing proceeding. The power of the Federal Court to punish for contempts of its power is conferred by s.31, Federal Court Act. The power conferred on the Australian Industrial Court to punish for contempts of its power is conferred by sub-sections 111(1) and (2) of the Act, but that power is not one which can be exercised by the Federal Court; see paragraph 118A(1)(b). The true nature of a proceeding for contempt is discussed in Viner v. Australian Building Construction Employees' and Builders Labourers' Federation (No. 1) (1981) 56 F.L.R. 5 commencing at p.27. At p.30, Northrop J. said:

"There is authority for the proposition that contempts of that kind are separate from the proceedings which give rise to the contempt. In order for such contempt to arise, there must be in existence legal proceedings and conduct by a person, whether a party to those proceedings or not, which has the effect of interfering with the due administration of justice in the conduct of that existing proceeding.

The leading case on this matter is O Shea v. O'Shea and Parnell; Ex parte Tuohy (1890) 15 P.D. 59 where Cotton L.J. and Lopes L.J. each expressed the view that contempt proceedings commenced by way of motion in an existing proceeding are criminal in nature, but at the same time are separate and distinct from the proceedings which gave rise to the contempt and to initiate proceedings against the person who has committed the contempt, it is appropriate that a motion be taken out in the existing proceedings naming the person against whom attachment is sought for contempt."

It follows, therefore, that the appeal by Bali and Marsh is incompetent by reason of paragraph 118B(1)(a) of the Act. The appeal should be dismissed. In these circumstances it is neither necessary nor desirable that I should express views in relation to the issues of whether, if the order appealed from is an interlocutory order, leave to appeal should be given under sub-section 24(1A) of the Federal Court Act, or whether the subpoenas could relate to an irregularity under the Act.