Park, Leslie Alan Semple v Henderson, Thomas Horatio

[1983] FCA 228

Re: LESLIE ALAN SEMPLE PARK
And: THOMAS HORATIO HENDERSON
Nos. WA 12, 13 and 14 of 1983
Conciliation and Arbitration Act 1904

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Beaumont J.

CATCHWORDS

Conciliation and Arbitration Act, 1904 - Alleged failure to comply with order of court to perform and observe rules of registered organisation - Suspension and dismissal of branch organisers from office - Principles regarding compliance with orders - Failure to comply to be established beyond reasonable doubt.

Conciliation and Arbitration Act 1904, s.141.

HEARING

SYDNEY

#DATE 2:9:1983

ORDER

1. The information be dismissed.

JUDGE1

By summons dated 27 May, 1983, the prosecutor charges the defendant with a failure to comply with an order of this Court contrary to s.141(4) of the Conciliation and Arbitration Act, 1904 ("the Act").

This matter and a number of related matters were heard together. By his summons in this matter dated 27 May, 1983, the prosecutor makes the following charge against the defendant:

"That on the 9th May 1983 at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street Perth in the said State THOMAS HORATIO HENDERSON of 24 Martin Avenue Rivervale in the said State being a person who was on the 6th May 1983 ordered by the Federal Court of Australia to perform and observe the Rules of the Building Workers' Industrial Union of Australia by treating as null and void the suspension of the said Leslie Alan Semple Park as an Organiser of the Western Australian Branch of the Building Workers' Industrial Union of Australia on the 2nd February 1983, failed to comply with the said Order contrary to sub-Section 4 of Section 141 of the Conciliation and Arbitration Act 1904."

Particulars of the charge are:

"That at 8.50 a.m. on Monday 9th May 1983 the said Leslie Alan Semple Park attended at the offices of the Building Workers' Industrial Union of Australia Western Australia Branch at 108 Beaufort Street, Perth aforesaid and on the said Leslie Alan Semple Park entering the office of the said Thomas Horatio Henderson the following conversation took place. The said Thomas Horatio Henderson said, 'Go home'.
The said Leslie Alan Semple Park said, 'I am here to start work'.
The said Thomas Horatio Henderson said, 'Well, we don't want you. Go home. We are having a meeting Thursday night'.
The said Leslie Alan Semple Park said, 'You don't want me here Monday, Tuesday, Wednesday or Thursday?'
The said Thomas Horatio Henderson said, 'Yes'."

The prosecutor gave evidence that the defendant was present in Court on 6 May, 1983 when Toohey, J. made the orders referred to in the earlier proceedings. He also gave evidence of a discussion in the defendant's office on the morning of Monday, 9 May, 1983. The defendant then said to the prosecutor: "Go home". The prosecutor said: "I've come to start work". The defendant said: "There's a meeting on Thursday". The prosecutor said: "Do you mean you don't want me to attend work Monday, Tuesday, Wednesday or Thursday?" The defendant replied: "Yes."

Although this evidence was not challenged by the defendant, the case is no different in principle from the related proceedings in which Mr. Allen is the prosecutor. For the reasons I have given in matter No. W.A. 9 of 1983, I propose to dismiss this information also.

JUDGE2

This matter and a number of related matters were heard together. By his summons in this matter dated 27 May, 1983, the prosecutor makes the following charge against the defendant:

"That on the 9th May 1983 at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street Perth in the said State THOMAS HORATIO HENDERSON of 24 Martin Avenue Rivervale in the said State being a person who was on the 6th May 1983 ordered by the Federal Court of Australia to perform and observe the Rules of the Building Workers' Industrial Union of Australia by treating as null and void the resolution of the Committee of Management of the Western Australian Branch thereof carried at its meeting on 25th February 1983 dismissing the said Leslie Alan Semple Park as an Organiser of the Western Australian Branch of the Building Workers' Industrial Union of Australia failed to comply with the said Order contrary to sub-Section 4 of Section 141 of the Conciliation and Arbitration Act 1904."

Particulars of the charge are the same as those given in the previous matter between the same parties, No. W.A. 12 of 1983. However, there is one difference between the charges made. In the earlier proceeding, it is alleged that the prosecutor was purportedly suspended as an organiser whereas in this proceeding, the allegation is that the resolution purported to dismiss him from that office. Nothing turns on that distinction for present purposes. For the reasons given in the earlier matter, I propose to dismiss the information.

JUDGE3

This matter and a number of related matters were heard together. By his summons in this matter dated 27 May, 1983, the prosecutor makes the following charge against the defendant:

"That on the 9th May 1983 at the offices of the Building Workers' Industrial Union of Australia Western Australian Branch at 108 Beaufort Street Perth in the said State THOMAS HORATIO HENDERSON of 24 Martin Avenue Rivervale in the said State being a person who was on the 6th May 1983 ordered by the Federal Court of Australia to perform and observe the Rules of the Building Workers' Industrial Union of Australia by treating as null and void the resolution of the Committee of Management of the Western Australian Branch thereof carried at its meeting on 25th February 1983, suspending the said Leslie Alan Semple Park as an Organiser of the Western Australian Branch of the Building Workers' Industrial Union of Australia failed to comply with the said Order contrary to sub-Section 4 of Section 141 of the Conciliation and Arbitration Act 1904."

Particulars of the charge are the same as those given in the previous matter between the same parties, No. W.A. 12 of 1983. However, there is one difference between the charges made. In this proceeding, it is alleged that the purported resolution suspended the prosecutor as an organiser whereas, in the earlier proceeding, the allegation makes no reference to the resolution but refers simply to the purported suspension. Nothing turns on that distinction for present purposes. For the reasons given in the earlier matter, I propose to dismiss the information.