Mudginberri Station Pty Ltd v The Australasian Meat Industry Employees Union

[1985] FCA 333

Re: MUDGINBERRI STATION PTY. LIMITED
And: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION; JACK O'TOOLE; TREVOR
SURPLICE; DICK ANNEAR; PAT ROUGHAN; MEAT INSPECTORS ASSOCIATION; GORDON McCOLL
and ALEX THOMPSON
No. G123 of 1985
Contempt of Court

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.

CATCHWORDS

Contempt of Court - refusal to pay fines imposed for disobedience to interlocutory injunction - application for writ of sequestration against trade union - whether Court's usual powers to punish for contempt exercisable in relation to trade union or whether deregistration the sole remedy - relationship of para.143(1)(g) Conciliation and Arbitration Act 1904 and s.80 Trade Practices Act 1974 considered - whether as matter of discretion writ should issue having regard to statutory functions and duties of trade union.

Trade Practices Act 1974 ss.45D; 80.

Conciliation and Arbitration Act 1904 ss.132; 133; 142A; 143, 158.

HEARING

SYDNEY
#DATE 18:7:1985

ORDER

1. A Writ of sequestration issue against the Australasian Meat Industry Employees Union in accordance with the form set forth in the Schedule hereto.

2. The first to fifth respondents do pay to Mudginberri Station Pty. Limited its costs of these proceedings incurred since 21 June 1985.

3. Mudginberri Station Pty. Limited and the Australasian Meat Industry Employees Union have liberty to apply on two days notice.

4. The operation of this order be suspended up to and including 24 July 1985.

JUDGE1

On 21 June 1985 I heard a motion brought by Mudginberri Station Pty. Limited ("Mudginberri") the applicant, against the Australasian Meat Industry Employees Union (the "AMIEU"), Jack O'Toole, Trevor Surplice, Dick Annear, Pat Roughan, Meat Inspectors Association, Gordon McColl and Alex Thompson, the eight respondents. Mudginberri sought orders against the first to fifth respondents for contempt of court alleging they had breached orders dated 12 June 1985 made by Beaumont J. in proceedings G123 of 1985. These orders were interim injunctions directed to the first to fifth respondents restraining them until the final determination of the proceeding or further order from imposing, maintaining or giving effect or enforcing any ban on the provision of goods or services to Mudginberri or from setting up or maintaining any picket line at or in the vicinity of the abattoir conducted by Mudginberri where any such ban or picket line had the purpose or would have the effect of hindering or preventing the ordinary day to day activities and operations of Mudginberri's abattoir business.

In his reasons for judgment of 12 June 1985 Beaumont J. set forth his findings as to the history of the dispute and the position as it was at the time he heard the matter. He noted that the first to fifth respondents did not seek to argue that the applicant had failed to make out a prima facie case under sub-s.45D(1) of the Trade Practices Act 1974; rather, they concentrated their submissions on the defence provided by sub-s.45D(3). Considering this aspect his Honour came to the conclusion that there was a serious question to be tried. He found the balance of convenience favoured the grant of an interim injunction. He then granted the injunctions referred to above and made an order for an expedited hearing of the proceeding.

On the hearing of the motion before me on 21 June 1985 I pointed out that it should be mentioned that the actual issue between the parties, whether a tally system should be introduced at the abattoir, was not before me in these proceedings as it was not before Beaumont J. The sole question before me was whether there had been a breach of the order of the Court which Beaumont J. made on 12 June 1985 and, if so, whether some punishment should be ordered by the Court with a view to obtaining obedience to its order. That was the only matter before me and I expressed no view about the substance of the dispute. I was satisfied that the AMIEU had been served with the order of Beaumont J. dated 12 June 1985 and that the order was endorsed with a notice calling the attention of the Union to the possible consequences of non-compliance. I was further satisfied that the picket line remained in place with the approval of the AMIEU carrying out its earlier declared intention stated by Mr. O'Toole, its secretary, who is the second respondent. The orders which I made were -

"1. The motion in respect of the Second to Fifth Respondents be stood over with liberty to restore on seven (7) days notice.

2. The First Respondent be fined Ten Thousand Dollars ($10,000) in respect of breach of order of Beaumont J., of 12 June 1985 and from service of this order onwards, further fine of Two Thousand Dollars ($2,000) per day so long as the breach continues.

3. Liberty be given to all parties to apply on two (2) days notice.

4. The First Respondent is to pay the costs of the Applicant of this motion against the First Respondent.

5. The fine of Ten Thousand Dollars ($10,000) be paid to the Registrar of this Court within seven (7) days of service of this order upon the First Respondent.

6. A daily fine of Two Thousand Dollars ($2,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred."

Since 21 June 1985 the main proceeding has come on for hearing in Darwin before Morling J. On 12 July 1985 Morling J. held that Mudginberri's case under sub-s.45D(1) had been made out and that the defence under sub-s.45D(3) had not been made out. He granted permanent injunctions against the first to fifth respondents and each of them restraining them in terms broadly similar to the terms of the interim injunction. He further ordered that upon his order coming into operation on 12 July 1985 the interim injunctions granted by Beaumont J. be dissolved.

The matter presently before me comes forward in two ways. It will be noted that the motion before me on 21 June 1985 in respect of the second to fifth respondents, against whom no order was then made, was stood over with liberty to restore on seven days notice. Notice was given to Mr. Surplice, the third respondent, on 9 July 1985, to Mr. Annear, the fourth respondent, on 8 July 1985 and to Mr. Roughan, the fifth respondent, on 6 July 1985 of the restoration of that motion for hearing on 15 July 1985. The notice given to Mr. Surplice was of six days only.

In addition a notice of motion was issued by Mudginberri against AMIEU seeking the issue of a writ of sequestration which was served on 1 July 1985 with the return day fixed for 15 July 1985 and a similar notice of motion seeking a writ of sequestration was issued by Mudginberri against Mr. O'Toole, the second respondent. This was served upon him on 2 July 1985 and the return date was 15 July 1985.

On the hearing before me on 15 and 16 July 1985 Mudginberri and the first to fifth respondents were represented by Counsel.

Evidence was tendered by Mudginberri which proved to my satisfaction that the fine of $10,000 imposed on the AMIEU on 21 June 1985 which was payable to the Registrar within seven days of the service of the order of 21 June 1985 on the AMIEU had not been paid to the Registrar notwithstanding the due service of the order on 24 June 1985. It was further proved to my satisfaction that the AMIEU maintained the picket in place between the hearing before me on 21 June 1985 and the hearing before me on 15 and 16 July 1985. The fine imposed from service of the order of 21 June 1985 onwards of $2,000 per day so long as the breach continued was incurred from 24 June 1985, the date of service of the order, until 12 July 1985 when the interim injunctions were dissolved. These daily amounts became payable to the Registrar within 48 hours of being incurred.

The evidence showed that no part of these moneys had by 15 July 1985 been paid to the Registrar. The total amount of unpaid fines was therefore $10,000 plus 17 days at $2,000 per day, i.e. $34,000, a total of $44,000.

Not only has the AMIEU continued to breach the interim injunction up to the time it was dissolved, its secretary has, according to the evidence, publicly stated that the AMIEU will not pay the fine. I should perhaps mention that my findings in the proceedings now before me, as with the proceedings before me on 21 June 1985, have been arrived at on evidence which would satisfy the civil standard of proof and also the criminal standard of proof beyond reasonable doubt, if that were considered applicable.

The time has come for the Court to consider what further step, if any, should be taken against the AMIEU in respect of its deliberate and continued disobedience of the Court's order of 12 June 1985 up to the time that order was dissolved and in respect of its refusal to pay the fines imposed.

Counsel for the applicant seeks the issue of a writ of sequestration against the AMIEU. He has tendered evidence of the consents of five individual Commissioners who are willing to act. His request for sequestration is directed to securing payment of the fines. It is recognized that since 12 July 1985 there has been a permanent injunction in place of the interim injunction. No question of breach of the permanent injunction is before me in relation to the present proceeding.

Counsel for the AMIEU opposed the making of a sequestration order against that organization. His first submission was that this Court is not empowered to issue a writ of sequestration against a union incorporated under the Conciliation and Arbitration Act 1904; that Act envisages only deregistration for non-compliance with an order of the Court and it is exhaustive. In support of this submission Counsel referred in detail to the provisions of s.132 of the Conciliation and Arbitration Act dealing with the registration of organizations, to s.135 providing for the issue of a certificate of registration to each organization registered under that Act and to s.136 providing for the incorporation of organizations. He emphasized that organizations were incorporated under these statutory provisions in order to represent the interests of members in industrial matters and to pursue the objectives of that Act. On the subject of representation of its members he referred to s.142A.

Counsel further stressed the stringent conditions laid down by the Conciliation and Arbitration Act governing the structure and conduct of registered organizations. In this regard he referred to the provisions of s.133 concerning the requirement that the rules of the organization provide for elections, secret ballots and other matters; the provisions of s.133AA dealing particularly with elections by secret ballot, the provisions of s.133A dealing with federal and branch funds and s.133B dealing with loans to members, and grants and donations by organizations, and to the provisions of s.134 dealing with alterations to rules.

In amplification of the purposes sought to be achieved by bringing the regulation of industrial organizations within the operation of s.51(XXXV) of the Constitution Counsel referred to Federated Ironworkers Association of Australia v Commonwealth (1951) 84 C.L.R. 265 at pp.277-280 and The Queen v Sweeney; ex parte Northwest Exports Pty. Limited (1981) 147 C.L.R. 259 at p.264 and pp.272-274. Counsel also referred to Part VIIIAA of the Conciliation and Arbitration Act dealing with accounts and audit in respect of registered organizations, particularly s.158AB, sub-s.158AF(5) and s.158AG.

Counsel further submitted that the Conciliation and Arbitration Act itself provided a remedy where a registered organization wilfully neglected to obey an order of the Court. This was in sub-s.143(1)(g) providing for the cancellation of the registration of an organization on this ground.

Counsel argued that the Conciliation and Arbitration Act provides for the incorporation of organizations as a result of a long constitutional history; it provides what their functions are to be and it regulates them. The legislature has also given the Court power to issue an injunction and the question is whether one treats an organization as no different from any other person when it comes to he issue of an injunction. He submitted the answer was no; the power to issue injunctions or, perhaps, rather the power to enforce them outside the provisions of the Conciliation and Arbitration Act, did not lie.

This matter comes down to a question of statutory interpretation. This Court has jurisdiction conferred upon it by s.45D of the Trade Practices Act in relation to secondary boycotts. While that section remains in force the Court is obliged to exercise the jurisdiction so conferred by Parliament. In the exercise of that jurisdiction the Court is empowered to issue interim injunctions (sub-s.80(2) of the Trade Practices Act). But the power to issue an injunction without the usual powers of enforcing it would be a futile power. The usual powers of enforcing an injunction flow from the accepted law that disobedience of an order of the Court constitutes a contempt of the Court. One looks, therefore, to see if the Court has conferred upon it the power to deal with contempt of Court. In this regard one finds that sub-s.31(1) of the Federal Court of Australia Act 1976 read with s.24 of the Judiciary Act 1903 confers upon the Court the same power to punish for contempt as was possessed at the commencement of the Judiciary Act 1903 by the Supreme Court of Judicature in England. This includes power to commit for contempt or to issue a writ of sequestration. It also, in my opinion, even in the case of civil contempt, includes the power to fine (see Coonan & Denlay Pty. Limited v Superstar Australia Pty. Limited (No.2) (1981) 57 F.L.R. 118; Flamingo Park Pty. Limited v Dolly Dolly Creation Pty. Limited 17 April 1985, Wilcox J., unreported). This power has been exercised from time to time in relation to orders made under the Trade Practices Act since the Court commenced exercising jurisdiction.

What is now argued is not that the Court has no general power to deal with disobedience to an order of the Court under the Trade Practices Act as for a contempt. The submission is that on the proper interpretation of the Trade Practices Act and the Conciliation and Arbitration Act this power has been denied the Court in relation to registered organizations.

The question is so basic that had Parliament intended to limit the powers of enforcement of the Court's orders under s.45D in relation to registered organizations one would have expected it to be done expressly. Particularly is this so when one appreciates that Parliament has dealt expressly with the relationship of the Trade Practices Act and the Conciliation and Arbitration Act in connection with the grant of injunctions (including interim injunctions) in s.45D proceedings (see Trade Practices Act s.80AA; cf. Conciliation and Arbitration Act Division VA). The procedure of enforcing orders of a Court against a union by fine or sequestration appears to be in no way unusual (see Eckman v The Midland Bank Limited (1973) 1 All E.R. 609; (1973) I.C.R. 71; Con-Mech Engineers v AUEW (1973) I.C.R. 620; Goad v AUEW (1973) I.C.R. 42 (No.2), (1973) I.C.R. 108 (No.3); and Heatons Transport (St. Helens) Limited v Transport and General Workers Union (1973) A.C. 15). Indeed the regulations made under the Conciliation and Arbitration Act assume that a writ of sequestration may be issued against a registered organization to enforce payment of a fine imposed for refusal to obey an order of the Court (see regs. 99A and 105).

Undoubtedly any Court in exercising its judgment whether to impose any of these remedies against a union would take account of the fact that the funds of the union may consist largely of the contributions of members and that the important functions which a union properly performs representing its members should be interfered with as little as possible. On the other hand, the Court is an institution constituted by the community to assist in securing an orderly society. Its functions are basic. They are not lightly to be by-passed by holding that particular persons or organizations are not subject to the ordinary law of the land in relation to the securing of obedience to the Court's orders.

What is here argued is that the Conciliation and Arbitration Act by sub-s.143(1)(g) providing that any organization or person interested, the Minister or the Registrar may apply to the Court for an order directing the cancellation of the registration of an organization on the ground that the organization has wilfully neglected to obey an order of the Court and by sub-s.143(2) conferring jurisdiction on the Court to hear and determine such an application itself provides a remedy for the disobedience to an order of the Court and that this is the only remedy for such disobedience. It is suggested that the nature of registered organizations, their functions and the control of their affairs provided for by the Conciliation and Arbitration Act supports this argument.

I cannot accept the correctness of this argument. The jurisdiction conferred by s.143 of the Conciliation and Arbitration Act is not directed to securing obedience to the Court's orders under the Trade Practices Act. Indeed, to deregister an organization for neglect to obey an order of the Court would ensure that the organization could not obey the order. It would cease to be incorporated and would become a mere association (sub-s.143(6)). Furthermore, the Federal Court exercises jurisdiction under the Trade Practices Act in its general division. That division has no power to act under s.143 of the Conciliation and Arbitration Act. The jurisdiction under s.143 is exercisable only by the industrial division of the Federal Court sitting as a Bench of not less than three judges. The matters to be considered in relation to deregistration of an organization are very wide-ranging. Although wilful neglect to obey a Court order may furnish a ground for a deregistration application, the question whether deregistration should be ordered will in general depend upon quite different considerations from those which apply in contempt proceedings (cf. sub-ss.143(3DA) and 143(3DB)).

In the result I am not persuaded that the Court lacks power to make any of the usual orders for contempt of Court in respect of a registered organization.

Counsel for the first to fifth respondents further submitted that an interim injunction may be granted only where there has been or will be a contravention of s.45D of the Trade Practices Act and that this involves that the judge must be satisfied that the defence given by sub-s.45D(3) will probably not succeed at the hearing. He argued that the decision of Gray J. in Epitoma Pty. Limited v Australasian Meat Industry Employees Union (1984) 54 A.L.R. 713 was correct and that the contrary decision of the Full Court on appeal from Gray J. ((1984) 54 A.L.R. 730) was wrong. It was agreed there was no appeal from the decision of Beaumont J. on 12 June 1985 in the present case. I am not prepared in these proceedings to canvass the correctness of the decision of Beaumont J. on 12 June 1985 and, in any event, would follow the decision of the Full Court in the Epitoma Case. I reject the submission.

Counsel for the first to fifth respondents argued that there was no evidence of breach of the interim injunction by Mr. O'Toole, the second respondent. It is said that there was no evidence he took part in any "ban" or in "setting up or maintaining" the picket line; exhorting or encouraging was not enough. I have not detailed the history of this dispute in these reasons for judgment. The facts up to 12 June 1985 are set out in the judgment of Beaumont J. The further facts up to 21 June 1985 are referred to in my judgment of that date. Since then Mr. O'Toole has been active in relation to the dispute having twice gone on radio declaring publicly that the picket line would be maintained and having been observed as being personally present on the picket line on 13 and 14 June 1985 shortly before I commenced this hearing on 15 June 1985. I am satisfied that Mr. O'Toole has been involved in maintaining the picket line in breach of the interim injunction. I shall return later to the question whether an order should be made against Mr. O'Toole personally.

As to the third, fourth and fifth respondents Counsel announced his appearance for them part way through the hearing. He did not concede service upon any of them. He opposed the making of any order against them on the basis that no proper service of the order of 12 June 1985 with endorsement as required by the Rules of the Federal Court had been served upon them. It was submitted that the notice endorsed did not "name" the party and it drew attention to the possibility of a fine as well as imprisonment or sequestration thus going beyond the requirement of the Rules (see 0.37 r.2(3)). In my opinion the notice endorsed was not deficient. I will return to the position of these three respondents later.

Finally, it was submitted by Counsel for the first to fifth respondents that if sequestration does lie against a union, contrary to his earlier submission, a writ of sequestration should not issue against the AMIEU as a matter of discretion bearing in mind the provisions of the Conciliation and Arbitration Act.

Counsel for Mudginberri pressed for a writ of sequestration against the AMIEU and sought the committal to prison of Mr. O'Toole for a specified period. He referred to Danchevsky v Danchevsky (1974) 3 All E.R. 934 per Lord Denning M.R. at p.97. He pressed for a fine against Mr. Surplice, Mr. Annear and Mr. Roughan the third, fourth and fifth respondents.

As to the AMIEU, it appears to me that in the exercise of my discretion I should order a writ of sequestration. A final hearing of the proceeding under s.45D of the Trade Practices Act has now been had. Morling J. on 12 July 1985 held that the AMIEU had not made out a case under sub-s.45D(3) and was in breach of sub-s.45D(1). It is clear from the evidence that the AMIEU has engaged in a course of public defiance of the Court's order of 12 June 1985. The organization has had every opportunity to consider its position and to cease its contempt of the Court's order. It has not ceased. The interim order having been dissolved on 12 July 1985 and a permanent injunction having issued in its place, the future question will be a different one, whether the AMIEU is obeying the permanent injunction. I have considered the importance of the organization's position under the Conciliation and Arbitration Act and the related matters referred to earlier in these reasons. I have considered also the need to take steps to preserve respect for the orders of this Court. The fine of $10,000 and the fine of $2,000 per day incurred in respect of 17 days now totalling $44,000 remain unpaid. The AMIEU through its Secretary asserts this will not be paid.

I am of the opinion that a writ of sequestration should issue against the AMIEU and that the five individuals who have consented to act should be appointed as commissioners. Counsel for the AMIEU has stated that if such an order be made, his client will wish to appeal against it. He asks that the operation of such an order be suspended for a short period to enable an appeal to be lodged. I would propose to suspend the operation of such an order for a short period.

As to Mr. O'Toole, the second respondent, he has on the evidence, as I have said, been involved in the maintenance of the picket line in defiance of the Court's interim order which was binding upon him personally. Notwithstanding this I am of the opinion I should decline to make an order committing Mr. O'Toole to gaol for a specified period or for that matter an order imposing a fine or an order for the issue of a writ of sequestration against him personally. The principal purpose of contempt proceedings in relation to Mr. O'Toole can no longer be served, that is, to secure compliance with the order of 12 June 1985. That order was dissolved on 12 July 1985 and can no longer be obeyed or disobeyed. It is true that in contempt proceedings brought in respect of disobedience to an order of the Court, there is in addition to the objective of ensuring compliance with the order a punitive element. This punitive element may need to be invoked in order to assert the Court's authority in particular circumstances. I have considered whether present circumstances call for such an order against Mr. O'Toole. I do not consider that they do. The Court's authority in cases such as the present may have to be asserted in a graduated way. A sequestration order will be made against the organization. I do not consider imprisonment should be imposed upon Mr. O'Toole at this stage and to fine him now or order sequestration against him would appear to achieve little to advance the interests of the administration of justice. However, this is not to say that if Mr. O'Toole breaches the permanent injunction granted by the Court on 12 July 1985 he should not be dealt with by incarceration or otherwise.

As to Mr. Surplice, Mr. Annear and Mr. Roughan, the third, fourth and fifth respondents, the evidence shows a significant degree of involvement in the picket line by Mr. Surplice and Mr. Roughan, though not by Mr. Annear. Nevertheless, I again point out that the order of 12 June 1985 has now been dissolved. It is no longer possible to secure obedience to that order on the part of any of these respondents. As with Mr. O'Toole, involvement in deliberate breach of the permanent injunction granted on 12 July 1985 may result in the imposition of a fine upon or imprisonment of any of these respondents. At the present stage, since a sequestration order will be made against the AMIEU I see little that imposition of fines against these individuals would do to advance the interests of the administration of justice. In the result I refuse to make such orders against them.

Counsel for Mudginberri has asked for an order for costs on a solicitor and client basis, if successful in obtaining orders in these proceedings. This request is opposed by Counsel for the first to fifth respondents. Mudginberri has an order for its costs of the proceedings up to and including 21 June 1985 against the first respondent. I am of the opinion that it should have an order for its costs of these proceedings since 21 June 1985 against the first to fifth respondents but I am not prepared to order that these costs be on a solicitor and client basis.