Noack, P.m. v General Motors-Holdens Ltd

[1985] FCA 489

Re: PAUL MICHAEL NOACK
And: GENERAL MOTORS-HOLDENS LIMITED
Nos. 7 and 8 of 1985
Practice and Procedure
11 IR 463

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Forster J.

CATCHWORDS

Practice and procedure - information alleging breach of s. 5(1)(a) Conciliation and Arbitration Act in respect of dismissal of prosecutor - application to amend information so as to include alternatively or cumulatively breach of s.5(1)(f) Conciliation and Arbitration Act on same information in respect of same dismissal - whether amendment rendered information bad for duplicity - principles to be applied.

Practice and procedure - application for further and better particulars of "facts and circumstances" surrounding the dismissal - whether answer to particulars adequate.

Practice and procedure - application for discovery against the prosecutor - whether appropriate in criminal proceedings - principle to be applied - whether different because prosecutor is private individual - whether 0.49 r.4(2) and 0.10 r.1(1) made provision for discovery in present case - whether order for discovery "proper" in criminal proceedings.

HEARING

ADELAIDE
#DATE 25:9:1985

ORDER

1. Leave be granted to the prosecutor to amend the information in action number 7 of 1985.

2. The prosecutor be at liberty to discontinue action number 8 of 1985.

3. The prosecutor do pay the defendant's costs to be taxed, referable only to action number 8 of 1985 and not to include costs referable to action number 7 of 1985.

4. The prosecutor do give to the defendant the further and better particulars as requested by para. 4 of the request of the defendant dated 27 May 1985.

5. The defendant's application for an order for discovery against the prosecutor be refused.

6. Leave to appeal be refused.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 12 March 1985 the prosecutor was dismissed from his employment by the defendant. On 15 May 1985 he lodged two informations in this Court under the Conciliation and Arbitration Act 1904-1981 ("the Act") and caused two summonses to be issued to the defendant. Each information and summons alleged the same dismissal but those in proceedings no. 7 of 1985 alleged that the dismissal was contrary to s.5(1)(a) of the Act and those in proceeding no. 8 of 1985 alleged that the dismissal was contrary to s.5(1)(f) of the Act.

Notices of motion came before me in each proceeding. These notices claimed orders in identical terms which were -

"1. That either action no. 7 of 1985 or action no. 8 of 1985 be struck out.

2. That the Prosecutor deliver to the defendant by 5.00 p.m. on Wednesday 18th September 1985, the particulars as set out in the affidavit of Ian Lewis Maitland sworn the 9th day of September 1985 and filed herein.

3. That by 5.00 p.m. on Wednesday 18th September 1985 the Prosecutor give discovery of all documents which are or have been in the possession, custody or power of the Prosecutor relating to the matters in issue in this action.

4. Such further or other orders as to the Court may seem necessary."

At the outset of the hearing the prosecutor sought leave to amend the proceedings in matter no. 7 of 1985 by filing an amended information alleging that on 12 March 1985 the defendant did, contrary to ss. 5(1)(a) and (f) of the Act, dismiss the prosecutor -

". . . by reason of the circumstance that the said PAUL MICHAEL NOACK was a delegate of the VEHICLE BUILDERS EMPLOYEES FEDERATION OF AUSTRALIA, an organisation of employees registered pursuant to the Conciliation and Arbitration Act 1904 and further or in the alternative, by reason of the circumstance that the said PAUL MICHAEL NOACK being a delegate of the VEHICLE BUILDERS EMPLOYEES FEDERATION OF AUSTRALIA did an act or thing which was lawful for the purpose of furthering or protecting the industrial interests of the organisation or its members, being an act or thing done within the limits of authority expressly conferred on him by the organisation in accordance with the rules of the organisation."

The application for leave was opposed by the defendant.

Sections 5(1)(a) and 5(1)(f) of the Act are as follows -

"5.(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee -

(a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or . . .

(f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization."

It was argued by counsel for the prosecutor that whereas filing two informations with respect to the same dismissal alleging breaches of different sub-sections of s.5(1) of the Act had been done and inferentially approved or, at least not disapproved, by the Court in the case of Sandilands v. Australian Newspaper Mills 3 Industrial Reports p.386, the better view was that expressed by the Full Court of the Australian Industrial Court in Bowling v. General Motors-Holdens Pty Ltd (1975) 8 A.L.R. 197. In that case at p.218 Woodward J. said -

"The contrast with cases in which a particular act is made unlawful by reason of any one of a number of surrounding circumstances, is even clearer. Provided only a single act is charged, alternative or cumulative allegations as to the circumstances making it unlawful will not render it bad for uncertainty or duplicity.

The distinction is clearly drawn by Bray CJ in Romeyko v. Samuels (1972) 19 FLR 322 at 345 where he says: 'The true distinction, broadly speaking, it seems to me is between a statute which penalizes one or more acts, in which case two or more offences are created, and a statute which penalizes one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases . . .'

Applying this approach to the present case, I believe that, while the three acts referred to above must be made the subject of separate charges, the list of reasons for the acts which are deemed to be improper come under the heading of 'forbidden characteristics' referred to by Bray CJ. Thus it is proper to allege a dismissal 'by reason of the circumstances that' and then to refer to two or more of the matters listed. These could be set out either cumulatively or alternatively as the evidence required, and as long as any one of them was established, the offence would be made out."

The other members of the Court, Smithers and Evat JJ., expressly agreed with Woodward J.'s observations on this topic.

It was argued by senior counsel for the defendant that Bowling v. General Motors-Holdens Pty Ltd was wrongly decided on this topic and that it was imapermissible to pleas sub-ss.5(1)(a) and 5(1)(f) disjunctively, although they might be able to be pleaded conjunctively. Reliance was placed on the well known judgment of Bray CJ. in Romeyko v. Samuels (1972) 19 F.L.R. 322 but it seems to me, with respect, that that judgment does not suport this arguement. Woodward J. considered and expressly mentioned Romeyko and Samuels in the passage which I have quoted and in my respectful view, correctly applied it. In any event highly persuasive though the authority of a decision of a Full Court presided over by Bray CJ. must be, I feel myself to be bound by a decision of the Full Court of the Australian Industrial Court, the direct predecessor of the Industrial Division of this Court, so that if the two judgments are in conflict, I should follow Bowling's case which I also consider to be correct. I said that I would permit an amended information to be filed and the consequential amended summons to be issued. Counsel for the prosecutor then sought leave to withdraw the information in matter no. 8 of 1985. I gave such leave and made a limited order for costs against the prosecutor.

So far as the application for further and better particulars is concerned, counsel for the prosecutor agreed to give the further and better particulars requested with one exception and I now deal with that matter. On 27 May the defendant sought by letter, particulars as follows -

"4. As to sub-paragraph 2(f) of the Summons, particulars of the way in which it is alleged that the circumstance that Paul Michael Noack was a delegate of the Vehicle Builders Employees Federation of Australia was a substantial and operative factor in the decision of the defendant to dismiss the said Paul Michael Noack."

The prosecutor first answered that "the defendant is not entitled to the particulars sought". On 4 September 1985 the prosecutor answered as follows -

"As requested by paragraph 4 thereof:

Save that the Prosecutor says that it is an inescapable inference form (sic.) the facts and circumstances surrounding the dismissal and in the absence of other facts and circumstances known to the Prosecutor that the circumstances that the Prosecutor was a delegate was a substantial and operative factor in the said decision, otherwise the prosecutor is unable to give the particulars sought and the Defendant has no entitlement to seek such further particulars as such matters fall within the evidentiary onus of the Defendant pursuant to s.5(4) Conciliation and Arbitration Act 1904."

The defendant seeks further and better particulars of the "facts and circumstances" surrounding the dismissal from which the inescapable inference alleged in the answer should be drawn. I think there is force in the defendant's argument. If the answer simply said that it is an inescapable inference from the fact of the dismissal or from the terms of the letter of dismissal which is in evidence the defendant could, in my view, have no complaint. In the course of argument counsel for the prosecutor accepted that the answer objected to is inadequate and needed some amendment and amplification and I therefore ordered that the prosecutor give further and better particulars as requested of the answer set out above.

There remains the application for an order for discovery against the prosecutor. It is conceded on both sides that these are criminal proceedings. The prosecutor argues that there is a long line of authority going back to Montagu (Lord) v. Dudman (1751) 28 E.R. 253 in which it was said at p. 398 that -

"A bill of discovery lies here in aid of some proceedings in this court in order to deliver the party from the necessity of procuring evidence, or to aid the proceeding in some suit relating to a civil right in a court of common law, as an action; but not to aid the prosecution of an indictment or information, or to aid the defence to it."

This passage was cited with approval by the High Court in Naismith v. McGovern (1953) 90 C.L.R. 336 at 340. It is of course true that this latter case concerned an action for the recovery of a penalty which, although partly of a criminal nature, nevertheless was said to be in the nature of a civil action and discovery by the prosecutor was ordered. In Maddison v. Goldrick (1975) 1 N.S.W.L.R. 557 at 567 Taylor CJ. at C.L. says at p. 565 "It is I think correct to say that discovery and inspection of documents by the Crown or by the accused is foreign to criminal law and procedure".

The defendant argued that the prosecutor in the present case is not the Crown but a private individual which makes the position different. I am unable to accept this argument. Either proceedings are criminal proceedings or they are not. It is conceded that these proceedings are criminal proceedings and the fact that the prosecutor is a private individual and not a police officer or an attorney-general taking proceedings on behalf of the Crown or in the name of the Crown cannot, as it seems to me, affect the basic principle.

Next it was argued that the rules of this Court make provision in a case such as this for an order for discovery. Order 49 rule 4(2) is as follows -

"(2) Except where the defendant enters a plea of guilty or the Court otherwise orders, on the day appointed under sub-rule (1), the charge shall not be heard, but the Court shall -
(a) give any necessary directions as to the conduct of the prosecution and defence; and
(b) fix a date for hearing or further directions."

It was said that the requirement to give "any necessary directions" must refer back to Order 10 which deals with directions hearings and since rule 1(2)(a)(i) of order 10 enables the Court to make orders with respect to discovery the Court in the present case may make an order for discovery. I consider that this argument is unsound. Rule 1(1) of order 10 is as follows -

"(1) On a directions hearing the Court shall give such directions with respect to the conduct of the proceeding as it thinks proper."

It is enough to say that general and long established principles preclude me from making an order for discovery against a prosecutor and I do not consider such a direction would be "proper". In any event I consider that the directions referred to in Order 49 rule 4(2) are such directions as may be appropriate to the matter in hand and an order for discovery is not appropriate to criminal proceedings. I dismissed the defendant's application for an order for discovery.