The Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd

Re: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
And: MUDGINBERRI STATION PTY. LIMITED
Nos. N.S.W. G 162 and 188 of 1985
Contempt of Court
13 IR 416

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.
Northrop J.
Toohey J.

CATCHWORDS

Contempt of Court - Trade Practices Act - secondary boycott - power to impose fines for non-criminal contempt of Court - identification of the nature of the contempt - whether contumacious disobedience of orders amounts to contempt akin to criminal contempt - power of Court where there is past and continuing disobedience to make orders both coercing obedience to orders and punishing for disobedience - whether sufficient evidence of contempt.

Enforcement of orders against an organization registered under C & A Act - whether deregistration only remedy - whether usual procedures available.

Sequestration Order - power of Court to order sequestration of Union's assets - whether appropriate means of execution for outstanding penalties and costs.

Federal Court of Australia Act 1976 ss.13, 19, 31

Trade Practices Act 1974 ss.45D, 80, 86

Conciliation and Arbitration Act 1903 ss.118A, 143

Rules of Court 0.40

HEARING

MELBOURNE
#DATE 17:9:1985

ORDER

THE COURT ORDERS THAT the appeal be dismissed with costs.

(Settlement and entry of Orders is dealt with in O.36 of the Rules of Court.)

JUDGE1

The Australasian Meat Industry Employees' Union ("the Union") is an organization of employees under the Conciliation and Arbitration Act 1904 ("the C & A Act"). The Union is appealing from two orders made by the Federal Court of Australia constituted by the Chief Judge on 21 June 1985 ("the Fines Order") and on 18 July 1985 ("the Sequestration Order") respectively.

By the Fines Order, the Chief Judge ordered that the Union:-

"... 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.

...

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 (the Union).

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 it being incurred."

For ease of reference, the Fines Order is set out as Appendix 1 to these reasons for judgment.

The reference in the Fines Order to the order of Beaumont J. of 12 June 1985 is a reference to the interlocutory order of the Federal Court of Australia constituted by Beaumont J. made on 12 June 1982 restraining the Union and four of its officers from setting up or maintaining a picket line enforcing a ban on the provision of goods or services to or from the respondent at its Mudginberri abattoirs in the Northern Territory. The four officers of the Union who, together with the Union, were bound by the injunction, are Mr. Jack O'Toole, the federal secretary of the Union, Mr. Trevor Surplice, an organizer for the union based in the Northern Territory, Mr. Dick Annear, the federal president of the Union and the secretary of its Queensland Branch and Mr. Pat Roughan, a national organizer for the Union. For ease of reference, the Beaumont J. order is set out as Appendix 2 to these reasons for judgment.
Under the Sequestration Order, the Chief Judge ordered that a writ of sequestration issue against the Union. The writ was directed to five persons commanding and authorising them or any of them to take possession of the assets of the Union and from those assets to pay the sum of $44,000, being the total of the fines payable by the Union under the Fines Order, to the Registrar of the Court, to pay their costs of executing the writ and to pay the balance into Court. For ease of reference, the writ of sequestration is set out as Appendix 3 to these reasons for judgment.
In substance, the grounds of appeal relied on by the Union in its appeal from the Fines Order are:-

1. That the Court had no jurisdiction or power to impose the fines upon the Union.

2. In making the Fines Order, the Court wrongly admitted into evidence matters which were inadmissible and the remaining evidence was insufficient to sustain the Fines Order.

3. That if the Court had jurisdiction or power to impose the fines, the Court was in error in the exercise of that jurisdiction in imposing the fines for the purpose of coercing the performance of the injunction.

4. The Court had no jurisdiction or power to enforce the injunction by fine since the Union was an organization under the C & A Act.

In substance, the grounds of appeal relied on by the Union in its appeal from the Sequestration Order are:-

1. The Court had no jurisdiction or power to direct the issue of the writ of sequestration.

2. If the appeal against the Fines Order is successful, the Sequestration Order is bad because it depends upon the existence of a lawful order to pay fines which had not been paid.

3. The Fines Order was not in proper form, was ambiguous, failed to specify in what respects the Union was in breach of the Beaumont J. order and failed to specify what the Union should do or not do to remedy the breach in order to avoid incurring the continuing daily fine.

4. The only remedy for breach of an injunction made by the Court against an organization under the C & A Act, is to seek de-registration of the organization under s.143 of the C & A Act.

5. That if the Court had jurisdiction or power to make the Sequestration Order, the Court was in error in exercising that jurisdiction or power in order to enforce payment of the fines.

With the consent of the parties, the two appeals were heard together.

The appeal against the Fines Order
The respondent commenced proceedings in the Court alleging that the Union and its four officers mentioned above, hereinafter referred to as the four named officers, were engaging in conduct, commonly known as imposing a secondary boycott, in contravention of s.45D of the Trade Practices Act 1974. Those proceedings were brought in the General Division of the Federal Court; see s.86 of the Trade Practices Act and s.19 and sub-sections 13(1) and (2) of the Federal Court of Australia Act 1976. Under s.80 of the Trade Practices Act, the respondent sought both interim and permanent injunctions restraining the Union and the four named officers from continuing that conduct being the setting up and the maintaining of the picket line referred to in the Beaumont J. order. There was no appeal from that order. On 13 June 1985 notice of the interlocutory injunction was given to the Union and to each of the four named officers. The respondent alleged that the Union and the four named officers had failed and were failing to obey the injunction. On 14 June 1985 the respondent sought to proceed against the Union and the four named officers for contempt of Court; see O.40 r.5(1) of the Rules of Court. Under that rule, where it is alleged that a contempt has been committed in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by motion on notice in the proceeding. By notice dated 14 June 1985, the respondent gave notice that it would move the Court for orders that the Union and the four named officers be punished for contempt of Court. The notice called on those persons to "show cause why fines or imprisonment or other penalties should not be imposed upon each or all of them as a punishment for contempt and as a deterrent of future conduct."; (the underlining is added). In accordance with O.40 r.6, a statement of charge was subscribed to the notice of motion. The statement contained the following paragraph:-

"As at the time of the filing of this Notice of Motion, the First to Fifth Respondents (the Union and the four named officers) have failed to remove the picket line existing at the entrance to the abattoir and are actively continuing the activities of the picket line and ban." (The underlining is added.)

For ease of reference, the notice of motion is set out as Appendix 4 to these reasons.

By order made on 14 June 1985, the Court constituted by Morling J., directed that the motion be made returnable for directions before the Court at 2.15 p.m. on the same day and that the notice of motion and supporting affidavits be served on the Union and the four named officers by leaving copies thereof at the office of their solicitors. On the return of the notice of motion, there was no appearance by or on behalf of the Union or any of the four named officers. The Court adjourned the hearing of the motion to Monday, 17 June 1985. The motion came on for hearing before the Court constituted by the Chief Judge. The solicitors for the Union and the four named officers appeared and obtained leave to withdraw their appearance in the proceedings on behalf of those five persons. The Union did not appear. The respondent proceeded with its motion. It relied upon the affidavits already filed. It presented oral evidence. The Chief Judge adjourned the further hearing of the motion to Friday, 21 June 1985 and directed that the respondent serve the Union, and if it desired to continue against the four named officers, serve each of them, with a letter stating that the hearing had been adjourned to 10.15 a.m. on 21 June 1985 and the possible consequences if the motion was granted, copies of the affidavits in support of the motion and an affidavit verifying the oral evidence given that day. That was done and the motion came on for hearing before the Chief Judge on 21 June 1985. Neither the Union nor any of the four named officers appeared. The respondent relied upon further affidavits which had not been served on the Union and on further oral evidence. The Chief Judge then made the Fines Order.
This history has been set out in some detail because of the ground of appeal relating to the admissibility of evidence. Under O.40 r.7 of the Rules of the Court, the evidence in support of a charge of contempt of Court shall be by affidavit, but the Court may permit evidence in support of the charge to be given otherwise than by affidavit. Under O.40 r.8, the notice of motion, the statement of charge and the affidavits shall be served personally on the accused person. (The underlining is added).
In the present case, counsel for the Union did not dispute proper service of the relevant documents upon the Union, but contended that the new affidavits sworn after compliance with the order of the Chief Judge made on 17 June 1985 had not been served and therefore should not have been admitted in evidence. Those affidavits established service of the documents on the Union and the four named officers pursuant to the order of 17 June 1985 but in addition contained material which constituted admissions against the Union made by officers of the Union.
This submission on behalf of the Union should be rejected. Order 40 r.8 requires that copies of affidavits in support of the motion should be served. It is not directed to other affidavits that may be used at the hearing of the motion. Oral evidence may be given at the hearing and it would be nonsense to hold that the same evidence could not be given by affidavit. Affidavits of service of the documents normally are not served on the person charged. The further affidavits as well as the oral evidence was properly admitted.
Counsel contended further that the admissions against the interest of the Union given by the officers of the Union were inadmissible because there was no evidence that they or any of them had authority to make the admissions. That contention is rejected. It is true that the organization is a corporate body and can act only through agents. There was ample evidence before the Chief Judge to establish that, with respect to the picket line, the four named officers of the Union represented the Union with respect to the picket line the subject of the injunction and had authority to represent the Union; compare Williams v. Hursey (1959) 103 CLR 30 per Fullagar J. at pp 80-2.
Counsel sought to rely upon opinions expressed in Churchman & Ors v. Joint Shop Stewards' Committee of the Workers of the Port of London & Ors (1972) 3 All ER 603. Those opinions are accepted but the facts of that case are so different from the facts of the present case that the authority does not offer much assistance in determining the issues presently upon the Court.
Counsel contended further that the evidence was not sufficient to establish that the same picket line which had been in existence on and before 12 June 1985 remained in existence on 13 and 14 June 1985, being the only period for which the motion could relate. There is ample evidence to support the finding that the one picket line remained in existence, that the Union, as a matter of principle had decided to maintain that picket line in defiance of the injunction, and that it would not obey the order of the Court unless the matters giving rise to the disputation could be resolved by other means. The evidence discloses clearly that the Union deliberately intended to refuse to obey the injunction. Further mention of this aspect of the matter will be made when considering the next ground of appeal. On the evidence, the existence of the picket line by the Union was established irrespective of whether the civil standard of proof or the criminal standard of proof beyond reasonable doubt was applied.
The ground of appeal based on the admissibility of evidence has not been made out.
The major issue raised by the Union was that the Court had no jurisdiction or power to make the Fines Order.
Under sub-section 31(1) of the Federal Court of Australia Act, the Court has the same power to punish contempts of its power as is possessed by the High Court in respect of contempts of the High Court. In the proceedings presently before the Court, the same sub-section provides that the jurisdiction to punish for any contempt committed shall be exercised by the Federal Court in its General Division. Under s.24 of the Judiciary Act 1903, the High Court has the same power to punish contempts of its power and authority as was possessed in 1903 by the Supreme Court of Judicature in England.
The failure by a person to obey an order of a Court is often described as a civil contempt in contrast to a criminal contempt which consists of conduct by a person, not necessarily a party to proceedings, scandalizing the Court, see for example Keogh v. Australian Workers Union (1902) 2 SR (NSW) 265 (Keogh's Case) and Jendell Australia Pty. Ltd. v. Tesby (1983) 1 NSWLR 127. Apart from contempt in the face or hearing of the Court for which the procedures to be applied are dealt with by O.40 rr.1 to 3 and 11 to 12, the procedure to be applied where it is alleged that a contempt has been committed, whether civil or criminal, is dealt with by O.40 rr.4 to 12. Those procedures were followed in these proceedings.
Counsel for the Union did not dispute the power of the Court to enforce obedience to an injunction against a natural person by imprisonment. Likewise, they did not dispute the power of the Court to enforce obedience to an injunction against a body corporate by sequestration. They contended that the Court had no power to impose a fine against a body corporate by way of penalty for refusing to obey an injunction. Alternatively, they argued that if the Court had that power, it was limited to the power to impose a fine by way of punishment in respect of contempt already committed and where the accused person was no longer in contempt of court. Alternatively, they argued, if there was a power to impose a fine, then that power was limited to the imposition of fines as punishment and not for the purpose of enforcing obedience to an order. In the present case, counsel contended that the Fines Order was made by the Chief Judge for the purpose of enforcing the injunction against the Union. They referred to the following passage from the reasons for judgment of the Chief Judge when he made the Fines Order:-

"The purpose of orders when contempt proceedings

for breach of a court's order are brought (as distinct from some order made, for example, for scandalizing the court or for contempt in the face of the court), is to secure obedience to the court's order. The order which I now make will be directed at that objective".

Further, counsel contended that the future daily fines supported the contention that the fines were imposed for the purpose of enforcing the injunction against the Union. In any event, counsel contended that the Court had no power to impose the fines for future acts of disobedience by the Union to the injunction.
In support of their contentions, counsel for the Union relied upon dicta expressed by Windeyer J. in Australian Consolidated Press Ltd. v. Morgan (1965) 112 CLR 483, (Morgan's Case). The dicta related to the question whether a court of equity had a power to impose a fine as punishment for a civil contempt arising from disobedience of an injunction. In the same case, Owen J. at p.516 said he shared the doubts expressed by Windeyer J. that a court of equity did not possess that power. Commencing at p.496 Windeyer J. gives a learned and interesting dissertation on the nature of contempt and the difference between civil contempts and criminal contempts and the methods of enforcing injunctions and punishing contempts. Thus at p.497, Windeyer J. said:-

"The undoubted power to fine for criminal contempt merely strengthens my misgivings about the fine in this case, for disobedience of an injunction or breach of an undertaking is not a criminal offence."

At p.498, his Honour referred to sequestration as "an old weapon of the Chancery Court to compel a party's obedience to either mesne process or a decree". He said that originally, "sequestration was the final weapon in the Chancery Court's armoury, used ... to compel a recalcitrant defendant to appear and answer the plaintiff's bill." At pp.498-9 his Honour said:-

"When contempt lies in disobedience of a court's order to do something, the contemnor may be imprisoned, until by doing what was ordered he purges his contempt. When contempt lies in disobedience of an injunction not to do something, the contemnor is ordinarily permitted to purge his contempt by an apology to the court, making reparation for the damage done by the forbidden act and paying the costs as between solicitor and client: see the article 'Contempt of Court' in the Encyclopaedia of the Laws of England. I do not suggest that a person who contumaciously disobeys a decree may not in some cases be, sentenced to remain in custody for a fixed term by way of expiation. There are instances of that in the reports; and see s.93 of the Equity Act, 1901-1957

(N.S.W.). Nevertheless the processes that an equity court uses to enforce its orders are primarily coercive or remedial rather than punitive. In the absence of express statutory authority they do not, I think, include the essentially penal sanction of a fine."

In discussing sequestration, his Honour, at pp.500-1 said:-

"It is true that a fine may - depending upon its amount - be a less severe consequence of disobedience than attachment or committal in the case of an individual or sequestration in the case of a company. But that does not, to my mind, show that a power to fine is a legal or logical alternative to the other remedies. Moreover their severity can be exaggerated. A writ of sequestration may be ordered to issue without being immediately executed. It is often ordered to lie in the office until the contempt be cleared by submission, making reparation for past disobedience and payment of costs. And even when the property of a contemnor is actually sequestered and held under sequestration it is not confiscated. The contemnor is deprived of the enjoyment of his rents and profits for the duration of the sequestration; but he does not forfeit his property in them. When whatever is considered necessary to clear the contempt has been done, the sequestration is discharged by the order of the Court: and the sequestrators must then give up possession on having their costs and expenses. ... Sometimes it may be appropriate that the proceeds of the sequestration, or part thereof, should be applied to the discharge of an equitable obligation, as for example by a direction that equitable debts, the non-payment of which had led to the sequestration, be first paid out of the fund; or that the fund be applied so far as necessary in reparation of the damage caused by the contemnor's disobedience. But this only illustrates again that sequestration for a civil contempt is coercive and compensatory rather than punitive."

His Honour then continued:-

"Decisions of courts in the United States accord with the view that I have expressed. It is recognized there that the line between civil and criminal contempt cannot always be sharply drawn, for conduct by a litigant may amount to both if he not only disobeys a court's order but does so in a deliberately defiant way. Mere breach of an injunction is, however, not criminal."

In the same case, Barwick CJ said at p.489:-

"A contempt in procedure by disobedience of an order of the Court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt. There is no reason in such a case why the same proceedings taken at the instance of the aggrieved suitor may not result in orders which are coercive of compliance with the Court's order or of an undertaking given to it and at the same time punitive of the criminal contempt: but this is not such a case."

In Morgan's Case, the conduct of the defendant was, as Windeyer J. said at p.503, "wilful, but not contumacious".
In recent years, the Federal Court has had to consider the power of the Federal Court to impose a fine, by way of penalty, upon a person who has failed to obey an order of the Court; see Coonan and Denlay Pty. Ltd. v. Superstar Australia Pty. Ltd. (No. 2) (1981) 57 FLR 118 per Sheppard J. and Flamingo Park Pty. Ltd. v. Dolly Dolly Creation Pty. Ltd. (1985) 59 ALR 247 per Wilcox J., (the Flamingo Park Case). In each of those cases, the trial Judge declined to apply the dicta expressed by Windeyer J. in Morgan's Case. In each of those cases the person was charged with civil contempt involving wilful disobedience of an order of the Court but in neither case was the disobedience contumacious in the sense of being a deliberate defiance of the authority of the Court. In reaching their decisions, each of the Judges relied upon English authorities, a number of which were subsequent to Morgan's Case. The reasoning of Wilcox J. at pp.256-262 under the headings "The power of the court to punish contempts", "'Civil' and 'criminal' contempt - The traditional dichotomy", "'Wilfully disobeyed': The English cases" and "The standard of proof" is approved and adopted. At p.259, Wilcox J. said:-

"The present case does not fall within the ambit of the traditional 'civil' contempt case: the breaches of the court's order are not continuing breaches. The court is not being asked to make coercive orders to compel the respondents to comply with the order of Fox J. So far as the evidence shows, they are not fully complying with that order. The court is being asked to make punitive orders to vindicate its authority and to demonstrate to these respondents and to others that the orders of the court may not with impunity be flouted. That is a function, in the traditional view, which may be performed only in a criminal contempt proceedings in which the Court is satisfied of all relevant matters, including contumacy, beyond reasonable doubt. However, as I have already indicated, I am not satisfied as to contumacy, in the sense of deliberate defiance, in the present case in respect of either the Parramatta breach or the Penrith breach of 9 February. There may not, therefore, be any finding of criminal contempt. Upon the traditional view that would dispose of the matter; no penalty may be imposed."

Nevertheless, his Honour imposed a penalty since there had been a wilful disobedience of the order of the Court.

The leading English authority is Heatons Transport (St. Helens) Ltd v. Transport and General Workers' Union (1973) AC 15. The report includes the judgment of the National Industrial Relations Court, comprising Sir John Donaldson, President, and members, which imposed penalties upon a Trade Union for a civil contempt arising from a wilful, but not contumacious, refusal to obey orders of the Court, the judgment of the Court of Appeal which allowed appeals from the National Industrial Relations Court and the judgment of the House of Lords which allowed the appeals from the Court of Appeal and restored the orders of the National Industrial Relations Court. Lord Wilberforce gave the judgment of the House of Lords which comprised his Lordship, Lord Pearson, Lord Diplock, Lord Cross of Chelsea and Lord Salmon. The House of Lords considered O.42 r.31 of the Rules of the Supreme Court of Judicature as in operation in 1965. That rule was in the same form in 1903 and included the following power:-

"Any judgment ... against a corporation wilfully disobeyed may, by leave of the court ... be enforced by sequestration ...".

Lord Wilberforce, in delivering the judgment of the House of Lords, considered at pages 108 to 110 a number of authorities and concluded that the Court had power to impose a penalty for disobedience to an order of a Court if the disobedience was more than casual or accidental and unintentional. Their Lordships were not considering contumacy or a deliberate defiance of the authority of the Court.

Counsel for the Union contended that the power to impose a penalty for a civil contempt is limited to cases where the accused person was no longer in contempt of court. The cases in the Federal Court were of that type. Heatons' Case involved two penalties, each imposed during a period while the contempt continued. No reference is made to this feature in the judgments in Heatons' Case. Having regard to the participation of members of the Court and of the House of Lords in earlier decisions involving this issue, it is most unlikely that that feature was overlooked. Accordingly, we approve the two Federal Court decisions mentioned earlier and accept that the Federal Court has power to impose a penalty upon a corporation by way of fine for disobedience of its orders whether the contempt is completed or not, provided the disobedience is wilful in the sense discussed above.
It follows that the Chief Judge was not in error in imposing the penalty of ten thousand dollars.
Different considerations apply with respect to the penalties being the fine of two thousand dollars a day for each day that the contempt continues.
In the Flamingo Park Case, Wilcox J. at pp.258-259 said:-

"There are cases in which particular proceedings will constitute both civil and criminal contempt proceedings. In R v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 253 Dixon J. referred to the 'well recognized' distinction between civil and criminal contempts but commented that 'when orders restraining or commanding the doing of specific things are defied or disobeyed the remedy by contempt may have a double aspect'. The notion of double aspect was explained in a passage at p.9 of the unreported judgment of the New South Wales Court of Appeal (Hope, Reynolds and Samuels JJA, 2 July 1980) in Law Society of New South Wales v. Kinsella. Although that passage was quoted in Jendell (above), it bears repitition:-

'Proceedings such as the present are brought primarily to ensure that a person who has given undertakings to the court complies with those undertakings. They are concerned to ensure that what has been ordered by the court or what has been undertaken to the court shall be carried out. However, in particular cases, in addition to ensuring that the court's order or that undertakings to the court are carried out, the court is constrained to have regard to the attitude of the person who has committed breaches, in this case breaches of undertakings, and to see whether there is contumacy on his part in respect of which it should impose some punishment. The court does not make orders uselessly. It makes orders in order that they be complied with. If they be flouted, the court must ensure that the person who flouts them realises that he does so at his peril. In the same way, if undertakings are given to the court, they are given to the court and accepted by the court on the basis that they will be carried out. The court will not be flouted by flagrant breaches of the undertakings.

Contumacy is a form of criminal contempt. In order that it be established one must be satisfied beyond reasonable doubt about the events that have taken place, and that they constitute contumacy.'"

It was said in the majority judgment of the High Court in John Fairfax & Sons Pty. Ltd. v. McRae (1954) 93 CLR 351 at pp 364 and 365 that with regard to contempts committed out of Court the power to punish was regarded from an early date as residing in the Council and later in the Star Chamber and that on the abolition of the Star Chamber the King's Bench assumed the jurisdiction to deal summarily with contempts committed against any Court. The reality of the connection between supervision by means of the prerogative writs and supervision by means of punishment for contempt was noted (cf R v. Davies (1906) 1 KB 32 at 43) It can not be doubted that the jurisdiction of the Council or the Star Chamber was a jurisdiction which existed in amplitude or that in the exercise thereof a wide range of remedies would be available.
In this case it is critical that the Chief Judge was satisfied that the picket line remained in place with the approval of the Union carrying out the earlier declared intention by Mr. O'Toole, its secretary that "in terms of the current dispute and the Union's demands the picket lines would remain". The authority of the Court was thus deliberately defied for the purpose of implementing Union policy in the matter of the dispute out of which the proceedings for the interlocutory injunction had been taken.
It is clear that in making the order that he did the purpose of the learned Chief Judge was both to punish and to coerce the Union to obey the injunction granted by Beaumont J. In assessing the nature of the jurisdiction to deal with a contempt of a continuing nature it is to be observed that in the case of contempt by an individual, committal of that individual or the issue of a writ of sequestration may be an appropriate remedy. Thereby punishment for the contempt already committed is imposed and at the same time provision is made by way of coercion of the contemnor to bring his contempt to an end. If it be correct that a court inheriting the jurisdiction to punish for contempt has always had jurisdiction to fine the contemnor for his contempt, as appears to be established, it is reasonable to think that that process might be used, not only to punish for the contempt for the period during which the contempt had been in performance when the charge in respect thereof was brought before the Court, but to punish or apply coercion in respect of the contempt as a continuing item of misconduct. Just as committal and sequestration look to the future and operate by way of coercion and supervision in relation to the relevant misconduct considered as a single "offence" of contempt constituted not only by past misconduct but by continuing misconduct, and so, particularly where the Court draws the inference that the contemnor intends to continue to defy the Court in the course of some business or other policy. In such a case the Court, in the exercise of its jurisdiction, in the public interest, to ensure the observance of its orders cannot ignore the essential nature of the contempt in its double aspects of past and future defiance and is required to deal with it in its entirity. It is reasonable to regard the Court as having inherited jurisdiction to mould the remedy of a fine to meet that situation.
It would be regarded as inappropriate for the Court to impose a fine for misconduct not yet committed. But it is appropriate that the Court should apply a suitable penalty for a contempt already committed and of a continuing character considered as a single "offence". Thus the "further fines" imposed by the Chief Judge are part of the penalty for the affront to the Court by the past disobedience and the defiant intention to continue that disobedience.
It was submitted for the Union that it was beyond the competence of the Court to impose a further fine of $2,000 for each day on which the contempt of the order of 12 June 1985 was continued. And there is an obvious question as to how a fine may be imposed on a party in respect of misconduct which has not yet been committed. But the answer is found in the identification of the nature of the "offence" or the contempt which was before the Chief Judge. It was said by Dixon CJ in The King v. Metal Trades Employers' Association; Ex Parte Amalgamated Engineering Union, Australian Section (1950) 82 CLR 208 at pp 253 and 254 that:-

"The summons goes on to identify the orders so wilfully disobeyed. It will be seen that proceedings, although commenced by a party entitled to the benefit of the order of 5th June 1950, amount to much more than a recourse to civil process to enforce the execution of the order. The contempt charged is treated as a special or criminal contempt and not as a contempt in procedure. The distinction between civil and criminal contempts is well recognized, although when orders restraining or commanding the doing of specific things are defied or disobeyed the remedy by contempt may have a double aspect. This is not an occasion calling for a discussion of the two classes of contempt and of the middle ground upon which they overlap or of the purposes for which the distinction is important. ...

It is enough for present purposes to say that the imposition of a fine, as well as the nature of the summons, shows that the order is of a punitive or disciplinary nature. The learned judges of the Arbitration Court in making the order acted in the purported exercise of a jurisdiction to deal summarily with contempts of that court. The jurisdiction asserted depends on s.17(3) of the Act, which provides that the Arbitration Court shall be a superior court of record. One of the powers which a superior court of record possesses at common law is to punish summarily for contempts of its judicial authority. The power is not confined to contempts in the face of the court but extends to contempts of the superior court inside and outside that court. It is in virtue of this power belonging to a superior court at common law that the Arbitration Court has made the order now brought into question."

And as Barwick CJ said in Morgan's Case, above, at p.493:-

"I do not propose to discuss in this judgment the jurisdiction of the Supreme Court in Equity to order the payment of a fine for a contempt in procedure as I find it unnecessary to decide that question in order to resolve this application; and, in addition, the point was not argued before us. Suffice it to say that if the Court has such a jurisdiction, the imposition of a fine is not usually a means of coercing performance of an order or an undertaking or of compensating an aggrieved party for a breach of it. The fine is, of its very nature, punitive, better fitted for an occasion of criminal contempt where elements of contumacy or of defiance of the Court are present. I do not think that in this case the imposition of a fine was calculated to coerce compliance with the undertaking, and, in any case, it is clear that his Honour did not impose it for that purpose."

It was said in United States v. Mine Workers of America (1947) 330 U.S. 258 at 298 and 299:-

"Common sense would recognize that conduct can amount to both civil and criminal contempt. The same acts may justify a court in resorting to coercive and to punitive measures."

It is appropriate for the contempt before the Chief Judge to be regarded as involving an element of contumacious conduct. Contumacy is perverse obstinate resistance to authority; see the Shorter Oxford Dictionary. Deliberate determination to defy the Court for reasons founded upon Union policy in which it is sought to establish immunity from the law would seem to be within this concept of contumacy. The line between civil and criminal contempt has always been blurred. Where the element of determination to defy the Court on grounds which reflect in effect a challenge to the Court and the law it upholds there is in substance criminal contempt or at any rate a contempt evoking the same kind of discipline as that appropriate for criminal contempt. In such a case it is appropriate for a Court to take control of the contempt. That is what was done by the Chief Judge. It may not be appropriate to define the order made by the Chief Judge as a "further fine", but as a penalty operating as a flexible measure of control to enforce the Court's order.
It is to be observed that the power of the Council and the Star Chamber was inevitably "inherent" and the same may be said for that of the King's Bench and later the Court of Chancery. As such, the power would extend to the imposition of such penalties or remedies as were just and convenient to punish breaches of orders of the Court or secure obedience by coercion. It is that power which is inherited by the Federal Court in respect of enforcing obedience to its orders. Obedience of orders of the Court is fundamental to the life of the community according to the rule of law. The inherited power directed to the upholding of the law necessarily exists in this Court in amplitude, and with adequate flexibility to deal with contempts, in the various natures they may assume and the circumstances in which they may be committed.
A claim is sometimes made that conduct involved in industrial disputes is, or ought to be, outside the scope of the ordinary law of the land. It is true that by law exceptions from provisions of the law otherwise binding on industrial organizations are made in relation to matters arising out of industrial relations. But where the ordinary law does apply to the relations between such organizations and private citizens it is as important that it be obeyed where industrial relations are involved as in any other area of business activity. This is elementary in a civilized community. How important it is can be seen in this case. Parliament has provided the most comprehensive statutory provisions for the registration and control of organizations of employees and employers and for organizations as party principals acting in their own right to seek awards binding on employers and employees and to secure fair and reasonable pay and conditions of work for employees. That machinery has been invoked in this case. It has resulted in an award covering work such as that done at Mudginberri. It is clear that the picket line in support of which the current contempt is committed is in support of conduct designed to prevent the observance of the provisions of the existing award. But, taking the view that the terms of the award infringe what is called a "Union principle", the Union has refused to lift that picket line. In maintaining the picket line, the Union is breaking a general law of the land, namely s.45D of the Trade Practices Act. The Court is obliged to apply that law. The respondent obtained an order of the Court directing the Union to cease maintaining the picket line. In deliberate defiance of that order of the Court, the Union has continued to maintain the picket line.

In these circumstances the question arises as to whether a fine assessed by reference to that degree of contempt of court already completed and a further fine of $2,000 per day during the continuance of the contempt is within the competence of the Court. It certainly satisfies the tests of justice and convenience as indicated above. The power to fine for each contempt is accepted. Accordingly, that portion of the order of the Chief Judge as imposed a fine for the contempt completed at the time of the respondent's motion seeking relief for the contempt was filed, is clearly within the competence of the Court. But it is apparent that the penalty imposed by the Chief Judge on 21 June 1985 was imposed by him not merely in respect of the contempt as completed when the motion was filed, namely, the morning of 14 June, but also in respect of the contempt considered as still continuing on 21 June accompanied by the threat of continuance thereof. Treating himself as dealing with the contempt in its dual nature, namely as something already committed and worthy of punishment and as a contempt accompanied by a threat to continue it indefinitely, the Chief Judge made an order which had the quality of being just and convenient. It is a wholesome view that the Court faced with a contumacious contempt carrying with it a defiant claim of immunity from the Court's jursidiction may do more than merely punish for the contempt already committed and may make an order designed to deal with that contempt according to its nature. It is difficult to contemplate that in the current circumstances that objective could be achieved more justly and fairly than by an order such as that made by the Chief Judge. It constituted a punishment for the past and it established a penalty referable to the continuing nature of the "offence" for the purpose of coercing the contemnor to discontinue it. Whether any such penalty would actually attach to the Union was in its own hands. If it ceased to commit its contempt the daily penalties would never take effect. To adapt the words of Barwick CJ in Morgan's Case, set out earlier in these reasons, and having regard to the totality of the Fines Order, there is no reason why the same proceedings taken by the respondent may not result in orders which are coercive of compliance with the Court's order and at the same time punitive of the criminal contempt being the contumacy of the Union.
If it be conceded that the contempt before the Chief Judge was not simply a contempt already committed but what may be called a "double contempt" involving a denial that the Union was amenable to the processes of the law as implemented by the Court, then, to impose a fine in respect of the contempt as already committed when the motion was brought, would not deal with that element of the contempt which consisted of the threat of future disobedience and defiance of the order of the Court. Inherent jurisdiction to deal with contempt would be defective unless, where there was continuance of the contempt to the time of hearing of the charge and the threat of continuance of the contempt thereafter, it extended to measures appropriate to coerce the contemnor to comply with the law. Imprisonment, in the case of an individual contemnor, is directed to the future. Release is dependent on willingness to obey the order of the Court. Sequestration is also directed to coercion to obey the order in the future as well as to ensure past obligations for example, the payment of costs. It would seem artificial to hold that the process of coercion by a fine accrues only if the contempt continued, but was not available to a Court of Record with the inherited power of this Court. That inherited power in its origin, was undefined and so were the available remedies. The power was unlimited save for the purpose thereof, namely to uphold the orders of a Court according to justice and convenience.
Agreeably with this view the Supreme Court of the United States of America in United States v. United Mine Workers of America ordered the payment of a $2,800,000 fine if the defendant failed to comply with a labour injunction within five days. In Con-Mech (Engineers) Ltd. v. Amalgamated Union of Engineering Workers (Engineering Section) (1973) ICR 620 the National Industrial Relations Court of the United Kingdom ordered sequestration of assets to the value of 100,000, but postponed a final decision on the amount of the fine which would become payable so as to give the Union time for further reflection. On continued disobedience of the order of the Court restraining unlawful industrial action, a fine of 75,000 was imposed. In C.L. Miller's "Contempt of Court" at p.12 the comment is made, "The form of judgment differs somewhat from the suspended fine in that the defendant will only know the general, rather than the precise price of non compliance.". The form of order adopted by the Chief Judge informs the Union in advance of the price of non-compliance. In our view the power of the Court is sufficiently wide to support such an order. True it is that if the contempt continues the Court records will not contain an entry of the fine but that situation may be dealt with pursuant to liberty to apply which was reserved. Indeed the imposition of the further fines should the contempt be continued into subsequent days, cannot take effect as a legal act until it is accepted by the Court in a subsequent hearing that the contempt did continue into those subsequent days. The form of order looks forward to a subsequent hearing, just as did the orders made in United States v. United Mine Workers of America and the Con-Mech Case. For that matter in the present proceedings, the penalty of $10,000 became payable within 7 days of service of the Fines Order on the Union. To prove non-payment, the date of service had to be proved.
It is pointed out that the imposition of the fine in the form adopted by the Chief Judge relates to future conduct which, although it may continue in such manner as to constitute contempt, the future conduct may be less blameworthy than that already committed, and which, if considered by itself might not merit a fine of $2,000 per day. However, the contempt before the Chief Judge was a single contempt involving past defiant conduct and the contumacious threat of continuing deliberate defiant conduct. The jurisdiction of the Court was properly directed to both aspects of that contempt, the conduct of the Union being a single continuing item of misconduct. Where there is a contempt with a threat of future contempt it is in the interests of the administration of justice that it be dealt with in all its aspects by a Court taking control of that contempt, thus eliminating the necessity for repeated applications to the Court. To accord such a power must conduce to the just, speedy, effective and beneficial administration of the law.
It is to be noted that in Morgan's Case it was accepted that if the contempt in that case had involved an element of contumacy or defiance it would have been correct to regard it as a criminal contempt and possibly to impose a fine. Again in Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd. (1964) Ch 195 Cross J. at pp 198-199 said:-

"... where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt, what is called contempt in procedure, 'bears a two-fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court in the public interest'."

In re Grantham Wholesale Fruit Vegetable and Potato Merchants Ltd. (1972) 1 WLR 559 Megarry J. at p 565 said of contumacious contempts:-

"In this type of a case a motion for committal is, of course, a means of putting pressure on the contemnor to obey the order, but it is not this alone: it is also a means of imposing any penalty thought proper in respect of the contempt that has already been comitted."

In Jennison v. Baker (1972) 2 QB 52 the Court of Appeal accepted the view of Cross J. expressed in the Phonographic Case that in contumacious civil contempts the Court exercised a penal jurisdiction. See also the comments of Megarry J. In re Grantham Wholesale Fruit Vegetable and Potato Merchants Ltd. The contempt in question was committed deliberately to support an industrial policy to resist the law in three of its facets, first as operative though an award of the C & A Act and second to resist the operation of s.45D of the Trade Practices Act and thirdly to defy an order of a competent court expressing the law of the land. It is the kind of contempt which by example, threatens the administration of justice in that wide area which concerns the operation of the law in relation to organizations. And of course should it emerge that for some reason the contempt, if continued into the future, assumed some less blameworthy character it would not be beyond the competence of the Court in the contemplated subsequent hearing to review the amount of the fine.

It follows that, subject to what is said in the next part of these reasons, the Chief Judge was not in error in imposing the fine of $10,000 and the further fines of $2,000 per day so long as the contempt continued for the purpose of coercing the performance of the injunction.
To some extent, the contention by counsel for the Union that the Court has no jurisdiction or power to enforce the injunction by fine since the Union was an organization under the C & A Act, is an extension of the contention that the Court has no power to impose fines for the purpose of securing the performance of the injunction by the Union. The contention is, in reality, that organizations under the C & A Act are not bound by the law of the land binding upon other persons, whether corporations or natural persons, within Australia.
There is no doubt that organizations occupy a unique position. The Australian Parliament has power to make laws with respect to the incorporation, regulation and control of organizations under placitum (xxxv) of s.5 of the Constitution and if need be, placitum (xxxix) of that section; see The Jumbunna Coal Mine, No Liability v. The Victorian Coal Miners' Association (1908) 6 CLR 309. It is true that the Australian Parliament has enacted many detailed provisions directed to the regulation and control of organizations. Counsel for the Union referred in detail to those enactments. Those enactments, however, must not be allowed to obscure the purpose of organizations which is to act in their own right as party principals within the Conciliation and Arbitration Commission in relation to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. In this context, an organization does not act as an agent for its members or persons eligible to be its members under its eligibility rule; generally see Reg. v. Dunlop Rubber Australia Ltd; Ex parte: Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71, Williams v. Hursey and Reg. v. Clarkson; Ex parte: The Victorian Employers Federation (1973) 131 CLR 100. Nevertheless, organizations are corporate bodies and are subject to the law of the land except where expressly or by necessary implication that law is excluded. In the present case, counsel for the Union have contended that the law of the land relating to the enforcement of orders of the Court are so excluded with respect to organizations either expressly or by necessary implication.
We reject those contentions for the reasons expressed by the Chief Judge in the reasons published by him on 18 July 1985 when the sequestration order was made. In addition, there is a fatal flaw in the contentions made by counsel for the Union. Paragraph 143(1)(g) of the C & A Act provides:-

"143(1) 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 -

(a) ...

(g) the organization has wilfully neglected to obey an order of the Court;

...".

In the C & A Act, except where otherwise clearly intended, "the Court" means the Australian Industrial Court created under the C & A Act; see sub-section 4(1) of the C & A Act. Thus in paragraph (g) of sub-section 143(1) of the C & A Act, unless otherwise clearly intended, the words "the Court" mean the Australian Industrial Court.

When Parliament created the Federal Court of Australia it conferred upon it, with certain exceptions not relevant for present purposes, the jurisdictions and powers previously conferred upon the Australian Industrial Court under the provisions of the C & A Act. This transfer of jurisdiction and powers was effected by Part VA which was inserted into the C & A Act and came into operation on 1 February 1977. That Part is headed "Transfer of Certain Jurisdiction of Australian Industrial Court to Federal Court of Australia". The relevant parts of s.118A, which is within Part VA is set out:-

"118A(1) On and after the date of commencement of this Part -

(a) the jurisdiction and powers expressed by this Act to be vested in or exercisable by the Court or a Judge of the Court are, ... vested in and exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and

(b) a reference in this Act to the Court (other than certain enumerated sections not presently relevant) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division.

...

118A(4A) Subject to sub-section (4B), the original jurisdiction of the Federal Court of Australia under this Act ... shall be exercised in the Industrial Division by a single Judge.

118A(4B) The original jurisdiction of the Federal Court of Australia under section ... 143, ... shall be exercised in the Industrial Division by a Full Court."

Under these provisions of the C & A Act, the jurisdiction and powers conferred upon the Australian Industrial Court by the opening part of sub-section 143(1) of the C & A Act are now to be exercised by the Federal Court of Australia in its Industrial division and must be exercised by a Full Court.
Paragraph (g) of sub-section 143(1) of the C & A Act does not confer a jurisdiction or power upon the Australian Industrial Court. In that paragraph, the words "the Court" are used to identify an order which forms the basis for the making of orders under s.143 of the C & A Act. It may well be that in paragraph (g) the words "the Court" are clearly intended to have a meaning wider than the Australian Industrial Court. It may well be that they are to be construed as including the Federal Court of Australia in its Industrial Division. On any view, the order of the Court referred to in paragraph (g) must refer to an order made by a Court under the C & A Act. It does not extend to orders of a Court including the Federal Court of Australia made under other statutory provisions.
As has been said above, the present proceedings before the Court come pursuant to the jurisdiction conferred by s.86 of the Trade Practices Act. In that Act the word "Court" is defined to mean, unless the contrary intention appears and there is no contrary intention in the present case, the Federal Court of Australia. The jurisdiction is exercised by the Court in its General Division and the original jurisdiction is exercised by a single Judge. On no view can it be said that an order of the Federal Court of Australia in its General Division is an order of the Court within the meaning of paragraph (g) of sub-section 143(1) of the C & A Act.
It follows therefore, that the Federal Court of Australia has no jurisdiction or power to make an order directing the cancellation of the registration of the Union on the ground that the union has wilfully neglected to obey the injunction imposed by Beaumont J.
This appeal should be dismissed.
The appeal against the Sequestration Order
When the Sequestration Order was made on 18 July 1985, the interim injunction contained in the Beaumont J. order of 12 June had been dissolved by the orders of the Court constituted by Morling J. made on 12 July 1985 granting permanent injunctions restraining the Union and the four named officers from maintaining the picket line. In making the Sequestration Order, the Chief Judge determined the total amount of the fines imposed upon the Union in the sum of $44,000 by adding to the fine of $10,000 the sum of $34,000 being the sum of the daily fines of $2,000 from 24 June 1985, being the date of the service of the Fines Order upon the Union, to 12 July 1985, being the date when the interim injunction was dissolved; a period of 17 days. The Chief Judge was satisfied that the Fines Order had been duly served on the Union on 24 June 1985 and that the Union had continued to maintain the picket line between the making of the Fines Order on 21 June 1985 and the hearing of the motion for the issue of the writ of sequestration. That hearing took place on 15 and 16 July 1985. The Chief Judge was satisfied that the amount of $44,000 was due and payable by the Union to the Registrar of the Court but had not been paid. In his reasons for making the Sequestration Order the Chief Judge said:-

"Not only has the AMIEU (the Union) 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 the order was dissolved and in respect of its refusal to pay the fines imposed."

Subject to the submissions based on the C & A Act, counsel for the Union did not dispute the power of the Court to order the issue of a writ of sequestration against a corporation which was in contempt of an order of the Court. Counsel for the Union did contend, however, that as the Beaumont J. order had been dissolved on 12 July 1985, the Chief Judge had no jurisdiction or power to make the Sequestration Order on 18 July 1985.

On 1 July 1985, the respondent gave notice that on 15 July 1985 it would move the Court for an order directing the issue of a writ of sequestration against the property of the Union. The form of writ sought was to authorize the taking of the assets of the Union until the contempt was cleared and until the Court made orders to the contrary. The contempt of the Union in refusing to obey the Beaumont J. order was the basis for the making of the Fines Order. The Union had deliberately defied that order and continued to defy that order after the Fines Order had been made. The Union had failed to pay any of the fines imposed upon it in the Fines Order. The Union continued to defy the Beaumont J. order. The Union, by its secretary, had stated that the Union would not pay the fines imposed upon it. The writ of sequestration granted authorized the persons named to take possession of the assets of the Union and from those assets to pay the sum of $44,000 to the Registrar of the Court, to pay their costs of executing the writ and to pay the balance into Court. As was said by the Chief Judge, the Court had to consider what it should do in respect of the Union's deliberate and continued disobedience of the Beaumont J. order up to the time of its dissolution and in respect of the Union's refusal to pay the fines imposed by the Fines Order. All these matters arose out of or in connection with the contempt of Court by the Union. In addition to the non-payment of the fines, the Union had not paid the costs ordered to be paid by the Beaumont J. order. The fact that a contempt of Court arising from a party refusing to obey an order of the Court has ceased, does not prevent the Court directing the issue of a writ of sequestration against that party to secure the payment of the costs of the other party. This was done, for example, in Keogh's Case above. In the present case, the conduct of the Union was contumacious and was in contempt of Court. The Court therefore, was able to exercise any of the powers conferred upon it by s.31 of the Federal Court Act.

The fact that the Beaumont J. order was dissolved, does not mean that it is to be treated as if it had never been made. It was an order which was valid and in existence from 12 June 1985 to 12 July 1985. It remained in existence to enable the Court to make all necessary orders with respect to matters arising out of the deliberate disobedience of it by the Union. When the property of a contemnor is sequestrated, it is not confiscated. The contemnor is deprived of the enjoyment of its property only for the duration and purposes of the sequestration. When, whatever is considered necessary to clear the contempt has been done, the sequestration is discharged by the order of the Court. Generally see what was said by Windeyer J. in Morgan's Case, at pp.500-1, cited above.
In the present case, what must be done by the Union is that the fines imposed are to be paid to the Registrar, the costs of the sequestration are to be paid and thereafter, the Court will be in a position to determine what should be done with the balance of the assets of the Union. Questions of payment of legal costs may arise. Other questions may arise. To give effect to the powers of the Court, the Beaumont J. order must be considered as being in operation between 12 June 1985 and 12 July 1985 to support the making of the Sequestration Order.
As at 15 and 16 July 1985 when the motion was heard, the respondent was seeking leave to issue a writ of sequestration which was described in terms as directed to the detention of the property of the Union until it should cease to engage in the conduct of maintaining the picket line in disobedience to the order of Beaumont J. or should otherwise clear its contempt and until the Court should order to the contrary. Notice of that motion had been served on 1 July 1985 at which date the order of Beaumont J. was still in force. But that order did not operate to proscribe conduct engaged in by the Union after 12 July 1985 when it was superseded by the order of Morling J. Thus when on 15 and 16 July 1985 the respondent's motion for leave to issue the writ of sequestration was heard in the presence of counsel for the Union, there was no longer any question of coercing the Union to cease disobedience to the order of Beaumont J. What was outstanding however, was the non-payment of the fines, liability for payment of which depended on proof of continuing disobedience of the order of Beaumont J. during the period ending on 12 July 1985. The Chief Judge has pointed out in his reasons for judgment that counsel for the respondent sought the issue of a writ of sequestration "directed to securing payment of fines" and that no question of breach of the permanent injunction was before him in relation to the current proceeding. It appears from those reasons that counsel for the Union contended that the Court was not empowered to make an order for sequestration against it because it was an organization registered under the C & A Act. It was said that by the terms of that Act the only remedy against such an organization for failure to obey an order of the Court was by process of deregistration. Counsel for the Union also contended that the interlocutory injunction of Beaumont J. was not supported by a final decision of that Judge that the Union's defence under s.45D(3) could not succeed at the hearing, and should for that reason, be rejected as invalid. It was also contended that the Union being an organization under the C & A Act and engaged in industrial relations, leave to issue the writ of sequestration should, as a matter of discretion be refused.
None of these contentions were accepted by the learned Chief Judge. It does not appear that there was a submission that leave to issue the writ should be refused because of the form of the motion or of the dissolution on 12 July of the interlocutory injunction made by Beaumont J. It seems clear therefore, that in the proceedings before the Chief Judge it was apparent to all concerned that the leave to issue the writ was concerned with the disobedience by the Union of the order of Beaumont J. up to 12 July 1985 and the refusal of the Union to pay the fines.
To establish that the fines relating to each day after service of the order of 21 June 1985 were operative, it was necessary to establish to the satisfaction of the Chief Judge that the Union had continued to disboey the order of Beaumont J. between 21 June 1985 and 12 July 1985. This was done and thereupon the liability of the Union to pay those fines was established. That the Union had stated its determination not to pay those fines was also proved. In those circumstances there was established a liability in the Union under an order of the Court for the payment of the amount of the fines into Court at specified times and a declaration of intention not to pay the same at all. It was in these circumstances that the question of leave to issue the writ of sequestration was debated before the Chief Judge. That the writ, sought at the hearing, was sought as a process of execution of the Fines Order, was so understood by parties including the Union, would seem, necessarily, to follow from the circumstances appearing at the proceedings at that hearing. And before this Court, no point was taken that this might not have been so.
Before this Court there was a submission that the Court lacked power to give leave for the issuing of a writ of sequestration. But that it has such power is not to be doubted. As stated by the Chief Judge:-

"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 ER 609; (1973) ICR 71; Con-Mech Engineers v. AUEW (1973) ICR 620; Goad v. AUEW (1973) ICR 42 (No. 2), (1973) ICR 108 (No. 3); and Heatons Transport (St. Helens) Limited v. Transport and General Workers Union (1973) AC 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)."

At p.790 of Daniels Chancery Practice 8th Ed., it is observed:-

"Where any person is by any judgment or order directed to pay money into Court, or do any other act in a limited time, and after due service of such judgment or order refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment or order is, at the expiration of the time limited for the performance thereof, entitled, without obtaining any order for that purpose to issue a writ of sequestration against the estate and effects of such disobedient person."

Reference should be made also to O.42 r.31 of the Rules of the Supreme Court of Judicature as in operation in 1903 and as set out earlier in these reasons.

In the present case the relevant order is that the fines imposed are to be paid to the Registrar and the costs of the sequestration are to be paid. Thereafter, the Court will be in a position to determine what should be done with the balance of the assets of the Union. The Beaumont J. order must be considered as being in operation between 12 June 1985 and 12 July 1985 and the continual disobedience thereof crystalising the Fines Order of 21 June 1985 and supporting the making of the Sequestration Order. This ground of appeal fails.
The second ground of appeal was dependant upon the Fines Order being set aside. The Fines Order has not been set aside and thus the second ground of appeal fails.
At the commencement of the hearing of the appeals, the Court granted leave to the Union to rely upon the third ground of appeal. In submissions, counsel for the Union did not, in reality, develop this ground. We see no basis on which the ground can succeed and thus this ground fails.
The fourth ground of appeal, based as it is on the C & A Act and in particular paragraph 143(1)(g) of that Act, fails for the reasons already given with respect to the same contention in relation to the Fines Order.
The fifth ground of appeal relates to the exercise of a discretionary power. Applying the well known principles applicable to an appeal from the exercise of a discretion, nothing has been put by counsel for the Union to suggest that the Chief Judge was in error in exercising the discretion conferred upon him. This appeal should be dismissed.
In the result, we would dismiss each appeal with costs.

JUDGE2

By consent these two appeals were heard together. Both have their genesis in an order made by Beaumont J. on 12 June 1985 in an application brought by the respondent, Mudginberri Station Pty. Limited ("Mudginberri"), against the appellant, Australasian Meat Industry Employees' Union ("AMIEU"), pursuant to s.45D of the Trade Practices Act 1974.

Beaumont J. enjoined AMIEU and other respondents to the application, some of whom were officers of AMIEU, until final determination of the proceeding or further order:

"... from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods or services to the applicant at the Mudginberri Abattoirs ('the Abattoirs') or from setting up or maintaining any picket line at or in the vicinity of the Abattoirs where any such ban or picket line has the purpose and would have or be likely to have the effect of preventing or hindering the ordinary day-to-day activities and operations of the Abattoirs' business including:

(a) the carrying out of works of maintenance and repair at the Abattoirs;

(b) the delivery of any livestock for slaughter and processing;

(c) the access to and egress from the Abattoirs of any person or persons providing goods or services to the Abattoirs or otherwise involved or engaged in its ordinary day-to-day activities in the conduct of its business as an export meat processing works and an abattoirs licensed to process and export meat from Australia;

(d) the egress from the Abattoirs of any product of the Abattoirs;

(e) the sale of any processed products or by-products of the Abattoirs."

I shall make some reference to the background giving rise to Mudginberri's application but only so far as it is needed to explain how the order of Beaumont J. came to be made. Mudginberri conducts an abattoir and export meat processing works some 200 kilometres east of Darwin. Its operations include the slaughter, boning, sale and export of cattle and buffalo. A dispute arose between AMIEU and Mudginberri over the system of payment used at the abattoir. Following decisions of the Conciliation and Arbitration Commission, there is a contract system in force with a minimum payment provision which is aimed at ensuring that, for work done, an employee will receive not less than his entitlement under the relevant award plus twenty per cent. Mudginberri negotiated an arrangement with its employees for payment by result. AMIEU objected to the negotiation by Mudginberri of agreements with individual employees rather than with the union. Consequently, as Beaumont J. found and it is not a finding which was challenged in either of these appeals, a picket was established which was in force at the time of the hearing before him. Both parties to these appeals were represented before Beaumont J. but, because the relief then sought was interlocutory, his Honour did not purport to determine the issues which had arisen. It was enough for his purposes to find, as he did, that Mudginberri had made out a prima facie case under s.45D(1) of the Act and that a serious question arose as to the availability of any defence under para.45D(3)(b). However, as will appear, he did make some findings which are germane to these appeals. There was no appeal from the order of Beaumont J.
These appeals are brought by AMIEU against decisions of Bowen C.J. imposing fines on the union for breach of Beaumont J.'s order and thereafter granting Mudginberri leave to issue sequestration in respect of those fines. Before turning to the issues raised by the appeals, it may be helpful to say something of the history of events following the making of the order on 12 June. On 14 June Mudginberri lodged notice of motion, calling upon AMIEU and other respondents to the order of Beaumont J. who were connected with the union to show cause "why they should not be punished for contempt of Court" and "why fines or imprisonment or other penalties should not be imposed upon each or all of them as a punishment for contempt and as a deterrent of future conduct". The charge against them was that at the time of filing the notice of motion they "have failed to remove the picket line existing at the entrance to the abattoir and are actively continuing the activities of the picket line and ban".
The notice of motion came before Morling J. at 9 a.m. on 14 June. Having regard to the usual registry hours, it seems that the notice of motion had not then been filed and that this took place either at the hearing or later in the day. Counsel appeared on behalf of Mudginberri. Morling J. gave leave to serve short notice of the motion against all respondents to the motion for 2.15 p.m. that day and he fixed the same hour for a directions hearing. At 2.15 p.m. senior and junior counsel appeared on behalf of Mudginberri. There was no appearance on behalf of any of the respondents to the application. There were solicitors for AMIEU on the record. Morling J. stood the motion over until 17 June which was the following Monday.
The notice of motion came before the Chief Judge at 10.15 a.m. on 17 June. Again senior and junior counsel appeared for Mudginberri. A representative of the solicitors for AMIEU and other respondents associated with the union appeared to seek leave to file notice of ceasing to act. Leave was granted. Thereafter there was no appearance on behalf of any of the respondents to the motion. At the end of the hearing that day the Chief Judge directed service of certain affidavits and other documents upon AMIEU and then adjourned the hearing until 21 June. When the matter came before his Honour on 21 June, evidence was given by Mudginberri of compliance with the directions made on 17 June. At the end of the hearing that day the Chief Judge imposed fines on AMIEU and stood over the motion in respect of the other respondents to the application. As the power of the Federal Court to impose a fine for breach of its orders is very much at the forefront of AMIEU'S appeals, it is as well to set out verbatim the relevant terms of the order:

"1. ...

2. The First Respondent be fined Ten thousand dollars

($10,000) in respect of breach of order of Beaumont J., of 12th 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. ...

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 it being incurred."

On 4 July AMIEU lodged notice of appeal against the order imposing fines. On 12 July Morling J. granted a permanent injunction in the terms of the interlocutory injunction granted by Beaumont J. and the earlier injunction was thereby dissolved. By notice filed 1 July Mudginberri moved for leave to issue a writ of sequestration "to sequestrate the property and effects of the First Respondent", AMIEU and to issue a similar writ in respect of the second respondent who is the general secretary of AMIEU.
The hearing of this later motion took place before the Chief Judge on 15 and 16 July. On that occasion Mudginberri and the first to fifth respondents to the motion were represented by counsel. His Honour was satisfied, on the evidence, that no fine had been paid and that AMIEU had maintained the picket in place between the hearing on 21 June and the hearing on 15 and 16 July. He quantified the unpaid fines as $10,000 plus 17 days at $2,000 a day, a total of $44,000. The 17 days related to the period from service of the order of 21 June viz. 24 June until the dissolution of the order of Beaumont J. viz. 12 July. His Honour ordered that a writ of sequestration issue against AMIEU but made no order against the second respondent other than that the first to fifth respondents pay Mudginberri's costs of the proceedings since 21 June. Notice of appeal against that order was filed on 23 July.
Against that background I turn to the issues raised by the appeals. When the hearing began before this Court, counsel for AMIEU applied for leave to amend the notice of appeal in each case. No objection was taken by counsel for Mudginberri and leave was accordingly granted. As mentioned earlier, at the forefront of the appeals was the submission that the Federal Court may not impose a fine for civil contempt. The grounds of appeal express the matter in terms of the jurisdiction of the Court. But the issue is not one of jurisdiction for there is no doubt as to the Court's authority to decide the matter presented for its decision viz. the consequences of a breach of the order made by Beaumont J. The issue is whether the Court had power to impose a fine for such a breach.
Doubts as to the power of a court (in this case the Supreme Court of New South Wales in Equity) to impose a fine for a civil contempt were expressed by Windeyer J. in Australian Consolidated Press Ltd. v. Morgan (1964-1965) 112 CLR 483 at pp 496-502. His Honour's doubts sprang from the distinction between civil and criminal contempt. It is well established that disobedience of an order of a court, including breach of an injunction, may constitute a civil contempt. See Borrie and Lowe's Law of Contempt 2nd ed. Ch. 13; Arlidge and Eady: The Law of Contempt Ch. 5. There is not and has not been any doubt as to the power of a court to impose a fine for a criminal contempt, either as an alternative or in addition to committal or attachment. In this regard Windeyer J. commented at p.497:

"The undoubted power to fine for criminal contempt merely strengthens my misgivings about the fine in this case, for disobedience of an injunction or breach of an undertaking is not a criminal offence".

However his Honour recognised that there is a penal element in committing a person to prison for disobedience of a court order, for he said at p.499:

"I do not suggest that a person who contumaciously disobeys a decree may not in some cases be sentenced to remain in custody for a fixed term by way of expiation ... Nevertheless the processes that an equity court uses to enforce its orders are primarily coercive or remedial rather than punitive. In the absence of express statutory authority they do not, I think, include the essentially penal sanction of a fine".

It is, I think, unnecessary to trace the history of civil and criminal contempt and distinctions drawn between the two so far as penalty is concerned. These distinctions and the relevant authorities were noted by Windeyer J. in Australian Consolidated Press Ltd. v. Morgan and more recently by McClelland J. in Jendell Australia Pty. Ltd. v. Kesby (1983) 1 NSWLR 127 and Wilcox J. in Flamingo Park Pty. Ltd. v. Dolly Dolly Creation Pty. Ltd. (1985) 59 ALR 247. The consequence of a line of English decisions over the last two decades has been to eliminate the traditional distinction between criminal and civil contempt and to recognise the court's power to fine for what is a civil contempt involving wilful disobedience though not open defiance. The terms contumacious and contumelious have been used to distinguish between wilful disobedience and defiant disobedience, though not always consistently. In this line of English decisons the most important is without doubt that of the House of Lords in Heatons Transport (St. Helens) Ltd. v. Transport and General Workers' Union (1973) AC 15. In a joint opinion delivered by Lord Wilberforce, their Lordships said at pp 108-109:

"In Stancomb v. Trowbridge Urban District Council (1910) 2 Ch 190 Warrington J. explained the meaning of the word 'wilfully.' In that case the defendants were restrained by injunction from sending sewage into a stream and they undertook to cleanse the stream. They committed breaches of the injunction and failed to cleanse the stream in accordance with the undertaking. Warrington J. held upon the evidence that breaches of the injunction had been proved and that these breaches were in some instances the result of structural causes which had since been remedied, but in others of the acts of one of the defendants' servants which were neither casual nor accidental and unintentional. Warrington J. said, at p.194:

'In my judgment, if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. I think the expression "wilfully" in Order 42, r.31 is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v. Manchester Ship Canal Co.

(1897) WN 7.'

Warrington J.'s view was fully in accord with earlier judgments in Spokes v. Banbury Urban Council

(1865) LR 1 Eq 42, 45, 51 and Attorney-General at the relation of Leyton (Essex) Urban District Council v. Walthamstow Urban District Council (1895) 11 TLR 533, and it has been upheld, in preference to a contrary view expressed in Worthington v. Ad-Lib Club Ltd. (1965) Ch 236, by Stamp J. in Steiner Products Ltd. v. Willy Steiner Ltd. (1966) 1 WLR 986, 991-992 and by Megaw J. delivering judgment in the Restrictive Practices Court, in In re Mileage Conference Group of the Tyre Manufacturers' Conference Ltd.'s Agreement

(1966) LR 6 RP 49, 104-106 and by the Court of Appeal in Knight v. Clifton (1971) Ch 700, 713, 721. The view of Warrington J. has thus acquired high authority. It is also the reasonable view, because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional. Precedents for imposing a fine in such cases are afforded by the Steiner case and the Mileage Conference case to which reference has been made."

The elimination by the English courts of the distinction between civil and criminal contempts in relation to the imposition of a fine seems to have sprung from the existence of O.42 r.31 of the Rules of the Supreme Court of Judicature which read, until new rules came into force in 1966:

"Any judgment or order against a corporation wilfully disobeyed may, by leave of the court or a judge be enforced by sequestration against the corporate property or by attachment against the directors or other officers thereof, or by writ of sequestration against their property".

In Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd. (1964) 1 Ch 195 Cross J. said at pp 200-201:

"I cannot see the logic of saying that in a case of civil contempt the court has no alternative to sending the defendants to prison ... I think the court must have power, in the case of a civil contempt, to impose the lesser penalty of a fine".

Sub-section 31(1) of the Federal Court of Australia Act 1976 gives to the Federal Court "the same power to punish contempts of its power and authority as is possessed by the High Court". Section 24 of the Judiciary Act 1903 gives to the High Court "the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England". Order 42 r.31 was in force at the relevant time.
In my respectful view the doubts expressed by Windeyer J. in Australian Consolidated Press Ltd. v. Morgan, doubts which were shared by Owen J. in the same case, must now be regarded as having been put to rest by Heatons Transport. This was in effect the view taken by Sheppard J. in Coonan & Denlay Pty. Ltd. v. Superstar Australia Pty. Ltd. (No. 2) (1981) 57 FLR 118 and by Wilcox J. in Flamingo Park Pty. Ltd. v. Dolly Dolly Creation Pty. Ltd.
Counsel for AMIEU submitted that some of the decisions to which reference has been made were distinguishable because they concerned a contempt that had ended when the matter came before the Court. They did not involve disobedience of an order of the Court of a continuing nature. But that is not true of the orders made by the National Industrial Relations Court in Heatons Transport. Counsel contended that the question of the power to fine was not argued in that case. That may well be so but the absence of such a power in the case of continuing disobedience is hardly likely to have escaped the notice of the distinguished members of the House of Lords, of the Court of Appeal and of the National Industrial Relations Court or of counsel. Heatons Transport cannot be explained away in that manner; in my view it is clear authority for the power of the court to punish by fine for disobedience of its orders, whether or not that disobedience has come to an end.
In his reasons for judgment on the contempt motion the Chief Judge said:

"The purpose of orders when contempt proceedings for breach of a court's order are brought (as distinct from some order made, for example, for scandalising the court or for contempt in the face of the court), is to secure obedience to the court's order. The order which I now make will be directed at that objective.

I order that the Union in respect of its breach of the orders of Beaumont J. on 12 June 1985, be fined the sum of $10,000, and I order further that from the service of the order onwards there be a further fine of $2,000 a day should that breach continue".

Counsel for AMIEU attacked the imposition of fines as a coercive measure. This I understood to be an argument going not to the power of the Federal Court but rather to the principles according to which the Court should exercise its power to impose a fine. In imposing a fine for disobedience to the order of Beaumont J. shown to have taken place since the making of that order, the Chief Judge was not confined to an exercise in punishment. In imposing a fine his Honour was entitled, indeed bound, to look to an appropriate penalty for disobedience by AMIEU to the order of Beaumont J. But none of that is inconsistent with the notion of securing obedience to the Court's order. The penalty of $10,000 was intended to be by way of punishment for the disobedience the subject of the motion for contempt. The daily fine of $2,000 was aimed at ensuring future compliance with the order of Beaumont J. Neither penalty was attacked as excessive and, subject to what follows in these reasons, each may properly be regarded as part of a composite order designed both to punish and to coerce.
However the fine for future conduct involves another and more difficult question. Though the question does not appear expressly in the notices of appeal, it was mentioned during submissions by counsel for AMIEU and counsel for Mudginberri and it cannot be ignored in the resolution of these appeals. The question is the power of the Court to fix a fine for future conduct when that conduct has not yet occurred. At the outset one matter should be made clear. Counsel referred to "enforcement" of the fines imposed by the Chief Judge. That is not an accurate statement of the situation. While there was a fine imposed of $10,000, the so called fine of $2,000 a day could only be imposed on proof of continued disobedience by AMIEU of the order of Beaumont J. on a particular day or days. The Chief Judge was quantifying an appropriate penalty in the event that the breach held by him to have occurred was found to have continued. This is clear from the terms of the order of 21 June and from his Honour's reasons for judgment on the application for sequestration when he said, after noting that the fine of $10,000 had not been paid:

"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".

For that reason the use of the term 'fine' may give rise to some misunderstanding. The order of the Chief Judge on 21 June did not of itself impose a liability on AMIEU, other than payment of $10,000.

Counsel for Mudginberri drew an analogy with the situation of an individual who is imprisoned for disobedience of an order of the court and remains in prison until he has complied with the order. But the analogy is not complete. Where an individual is committed to prison, he may be required to remain there until he adduces evidence of compliance with the order in question; he may then obtain his discharge ex debito justitiae. See In re Freston (1883) 11 QBD 545 at p 557. The fine of $2,000 a day fixed by the Chief Judge attracted no automatic consequences for AMIEU. It was only in the event that the breach of the order of Beaumont J. continued that a further penalty could be imposed. The fine of $2,000 was payable within 48 hours "of it being incurred". And that in turn required some further action initiated by Mudginberri, unless the Court directed the Registrar to act pursuant to O.40 r.10 of the Federal Court Rules.
The matter of concern is the notion of the prescription of a penalty for future disobedience of an order of the Court. The evidence adduced in support of an application for the imposition of a further penalty might show that $2,000 was, in respect of a particular day or days, inappropriate. It might be excessive or it might be unduly lenient. The order of Beaumont J. proscribed conduct in the form of a ban on the provisions of goods or services to Mudginberri and conduct constituting the setting up or maintaining of a picket line at the abattoir, where any such ban or picket line had the purpose and would have or be likely to have the effect of preventing or hindering the ordinary day to day activities and operations of the abattoir including the particular activities and operations nominated in the order. Theoretically at any rate, AMIEU might be in breach of the order on particular days but its conduct and the consequences of its conduct for the abattoir might vary. That in turn might be a relevant matter to take into account in determining a penalty. So too might the length of time the disobedience continued. And, of course, an application for the imposition of a further penalty might well come before another judge.
There is a difficulty in the form of the order of 21 June. It imposes a fine of $10,000 "in respect of breach of order of Beaumont J." and a daily fine of $2,000 "so long as the breach continues". The "breach of order" must be the breach found by the Court, the maintenance of the picket line; the daily penalty can only attach to a continuance of that particular breach.
The analogy of a daily penalty, such as is found in local government statutes or environmental legislation, offers no true comparison. In those cases a daily penalty is prescribed by the legislature for breaches found to have been committed and ordinarily is by way of a maximum penalty. The order made by the Chief Judge, in its terms, quantified in advance the consequences for AMIEU if it continued its disobedience of the order of Beaumont J.
The question is one both of power to impose a monetary penalty for continued breach of an order of the Court and, if power exists, of the appropriateness of such a course.
As to power, counsel did not refer to any decision where penalties for past and future breaches of an order of a court have been imposed, nor have I been able to find such a decision. Some evidence of the flexibility with which the imposition of a fine has been approached may be found in Con-Mech Engineers Ltd. v. Amalgamated Union of Engineering Workers (1973) 1 CR 620, where the National Industrial Relations Court ordered sequestration of the assets of a union to the extent of 100,000 for breach of an order of the Court but deferred a decision on the amount of the fine which would be imposed. A fine of 75,000 was later imposed for continued disobedience. And in United States v. United Mine Workers of America 330 U.S. 258 (1947) the Supreme Court of the United States ordered payment of a fine of $2,800,000 if the union failed to comply with a labour injunction within the time specified.
While I must confess to some earlier misgivings as to the power of the Court to impose the daily penalty of $2,000, I have come to the conclusion that such an order was within the Court's armoury, to borrow an expression used in some of the earlier cases. But I have reached that conclusion only because there was before the Court a continuing breach by AMIEU of the order of Beaumont J. and because it was that continuing breach with which the Court purported to deal. The Court was not exercising a statutory jurisdiction except in the sense that sub-s.31(1) of the Federal Court Act confers power by reference to the power of the Supreme Court of Judicature in 1903. In the absence of some regulatory statute, superior courts of record rely upon an inherent power to enforce their orders and to punish for disobedience to them. It is a power that may be used flexibly to achieve the object of the court, be it to punish or coerce or both. When such a court has before it a situation of continuing disobedience of one of its orders, I think it is within the power of that court to punish for past disobedience and to coerce future compliance by a monetary penalty imposed for continuing disobedience. That is not to say that difficulties of interpretation and problems of enforcement may not arise when that is done (the present case is an illustration of this), but I accept that the Federal Court has power to make such orders.
If that conclusion be right, I am not persuaded that the order made by the Chief Judge on 21 June was, in the circumstances, inappropriate. His Honour was faced with a breach by AMIEU of Beaumont J.'s order, a breach which had been on foot for some days and which showed every sign of continuing. The penalties imposed by his Honour were designed to remedy that situation and in doing so to alert AMIEU to the consequences of continued disobedience. Nevertheless the form the penalties took had consequences when Mudginberri sought to take the matter further with a writ of sequestration.
Order 40 of the Federal Court Rules requires that an application for punishment for contempt be made by motion on notice (r.5), that there be a statement of charge (r.6) and that personal service of the notice of motion, statement of charge and affidavits in support of the charge be effected on the accused person (r.8). In my respectful view these procedures cannot be by-passed by the imposition of a fine for future conduct even though the fine is expressed to be payable "so long as the breach continues" and even though, on an application for leave to issue a writ of sequestration, there is evidence before the Court of continuing disobedience. The rules support an underlying principle that when it is sought to punish a person for contempt, that person must be given a notice stating the charges with proper particularity and giving notice of any new charge. See Churchman v. Joint Shop Stewards' Committee of the Workers of the Port of London (1972) 3 All ER 603 and the recent decision of the High Court in Doyle v. Commonwealth of Australia (unreported decision, delivered 1 August 1985).
There was no motion on notice that AMIEU be penalised (other than by sequestration) for continued breach of the order of Beaumont J., continued that is after the order of the Chief Judge on 21 June. The finding that AMIEU was in continued breach and the imposition of fines of $34,000 took place when Mudginberri's application for leave to issue a writ of sequestration came before the Court. In my respectful view it was not open to Mudginberri, within the framework of this particular application for a writ of sequestration, to seek to quantify penalties by reference to the order of 21 June and to seek sequestration for their recovery. The draft writ of sequestration accompanying the motion was in terms that the sequestrators seize the property of AMIEU and

"... detain and keep the same under sequestration in your hands until the said AMIEU shall cease to engage in conduct in the nature of setting up or maintaining a picket line at or in the vicinity of the Abattoir and meat processing plant of Mudginberri Station Pty. Limited at Mudginberri and imposing, maintaining, giving effect to or enforcing any ban on the provisions of goods or services to the Applicant in wilful disobedience of the order of the Honourable Bryan Alan Beaumont, a Judge of this Court, and shall otherwise clear its contempt and until this Court makes order to the contrary".

This is the traditional form of sequestration as a punishment for contempt, as opposed to sequestration consequent upon a writ of fieri facias. In Re Australian Direct Steam Navigation Company (1875) LR 20 Eq 325 Jessel M.R. said at pp 326-327:

"The term 'sequestration' has no particular technical meaning; it simply means the detention of property by a Court of Justice for the purpose of answering a demand which is made".

But the form of sequestration sought was not the form in which sequestration was ordered. Both O.40 and the principle underlying it had significant consequences for the application for a writ of sequestration and the form of sequestration ordered. I shall deal with these matters later in these reasons. First however it is necessary to refer to other grounds of appeal argued in relation to the order of 21 June.

A further ground of appeal against that order was that the Chief Judge admitted into evidence against AMIEU material in affidavits which was inadmissible and that the admissible evidence was insufficient to establish a breach of the order of Beaumont J. In my view this ground cannot succeed. His Honour had before him the order of Beaumont J. and the reasons that led to the making of that order. Although Beaumont J. was dealing with an application for an interlocutory injunction, he made certain findings of fact in circumstances where those findings were not challenged. He found that in June 1984 AMIEU set up a picket line at the entrance of Mudginberri's premises, that the picket line was later disbanded but that on 10 May 1985 it was again established and at the time of the hearing before him remained in force. He noted that the picket line consisted of a fluctuating body of persons, all officers or members of AMIEU. There was at the time of the hearing before Beaumont J. and at the time of the hearing before the Chief Judge a sign at the picket line which read:

"A.C.T.U. endorsed official AMIEU picket line".

The Chief Judge expressed himself 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 ...". This was a reference to evidence that, following a conference before a Deputy President of the Conciliation and Arbitration Commission, Mr. O'Toole had said that the picket lines were in place at Mudginberri Abattoir and that, in terms of the current dispute and the union's demands, those picket lines would remain. There was ample evidence in the findings of Beaumont J. and in the affidavits of John David Pendarvis, the managing director of Mudginberri, and Desmond Pearson, the general manager of the abattoir, to support the conclusion reached by the Chief Judge.
The contempt motion against AMIEU recited the order made by Beaumont J. on 12 June 1985 and asserted:

"As at the time of the filing of this Notice of Motion, the First to Fifth Respondents have failed to move the picket line existing at the entrance to the abattoir and are actively continuing the activities of the picket line and ban".

Counsel for AMIEU submitted that, for the purposes of any orders made on the contempt motion, the only relevant conduct of AMIEU was on 13 and 14 July 1985, i.e. between service of the order of Beaumont J. on the union and the filing of the notice of motion. Counsel acknowledged that conduct by the union subsequent to 14 July might be relevant to the question of penalty but contended that a breach had to be established between 13 and 14 July. I do not accept that evidence of conduct by AMIEU after 14 July was not admissible to establish a breach of the order of Beaumont J. for the purposes of the motion, particularly if it was conduct of a continuing nature. But it is unnecessary to determine that question because there was ample evidence that the union maintained the picket on the days in question and was thereby in breach of the order.

As mentioned earlier in these reasons, the motion for contempt came before the Chief Judge on 17 June and, after some argument and evidence, was adjourned until 21 June. When he adjourned the matter on 17 June, his Honour directed service of relevant material on the union and this was done. When the matter came on for hearing on 21 June, Mudginberri relied on a further affidavit by Mr. Pearson sworn 20 June. Counsel for AMIEU submitted to us that, having regard to the provisions of O.40 r.8 of the Federal Court Rules, Mudginberri could not rely upon that affidavit. Order 40 deals with contempt and has two divisions - Division 1, Contempt in the face or hearing of the Court, and Division 2, Motion or proceedings for punishment. Rule 8 is in Division 2 and is applicable to the contempt motion in these proceedings. It reads:

"8. The notice of motion or application, the statement of charge, and the affidavits shall be served personally on the accused person".

The preceding rule reads:

"7.(1) Subject to sub-rule (2), the evidence in support of the charge shall be by affidavit.

(2) The Court may permit evidence in support of the charge to be given otherwise than by affidavit".

In my view r.8 does not impose an absolute prohibition on the use of material that has not been served personally on an accused person. The intention of the rule is to ensure that no injustice is done to an accused person by reason of a failure to provide him with the material filed in support of the charge against him. Sub-rule 7(2) contemplates that evidence may be given orally in support of the charge. Again the question is one of fairness to the accused. Evidence, whether orally or by some later affidavit, may represent such a departure from the material served on the accused person or may introduce such new matter that the applicant ought not to be permitted to adduce that material without service of the affidavit or notificiation of the proposed oral evidence to the accused person. But where, as in the present case, an accused person or someone with authority to speak on his behalf makes some comments at the time of service of material, the reception of that additional material is one for the discretion of the judge before whom the contempt motion comes. In my view the Chief Judge was entitled to rely upon all the material upon which he did rely.

I turn now to grounds of appeal peculiar to the issue of sequestration.
A ground of appeal, added when the hearing began, was that the order imposing the fines "as drawn and served upon the appellant" was not in proper form, was ambiguous, failed to specify in what respect the appellant was in breach of the order of Beaumont J. and failed to specify what the appellant should do or not do to remedy the breach to avoid incurring the continuing daily penalty.
It did not emerge with any precision why the order was said not to be in proper form. As to the contention that the order was ambiguous or defective, it is reasonable to conclude that the fine of $10,000 was imposed in respect of conduct prior to the making of the order. The penalty of $2,000 was imposed for continuance of the breach of the order of Beaumont J. found against AMIEU, effective as from the date of service of the order on the union. I do not think that the order was uncertain in its reference to the penalty of $2,000. It was payable for each day that the breach of the order established before the Chief Judge continued.
A further matter for consideration is an argument raised by several grounds of appeal that, in the case of an organization registered under the Conciliation and Arbitration Act 1904, the only sanction for disobedience of an order of the Court is deregistration under the provisions of that Act.
In essence the proposition is that the Conciliation and Arbitration Act provides a code for settling industrial disputes extending beyond the limits of a State and for the registration, regulation and control of trade unions. AMIEU's argument is summed up in the following sentence from its written submissions:

"From the language of the Act it is seen that Parliament intended that in respect of trade unions such as the appellant, their very structure, their activities and the conduct of their affairs should be governed by the Act and where the Act provides a remedy against a registered organization then it is exclusive of other remedies".

There are several reasons why that argument should not be accepted. In the matter now before the Court, the Federal Court was exercising jurisdiction conferred upon it by s.45D of the Trade Practices Act. Its power to punish disobedience of an order made pursuant to that section is to be found in s.31 of the Federal Court Act. Now it is true that para.143(1)(g) of the Conciliation and Arbitration Act provides for cancellation of registration of an organization which has wilfully neglected to obey an order of "the Court". There is an initial question as to what is meant by "the Court" in s.143. Section 4 of the Act defines "the Court" to mean the Australian Industrial Court created by the Act. However s.118A provides for a transfer to the Federal Court of the jurisdiction and powers expressed by the Act to be vested in or exercisable by "the Court or a Judge of the Court". In this regard, see Brophy v. Mapstone (1984) 56 ALR 135 at pp 147-148. Thus the reference to "the Court" in the opening words of sub-s.143(1) is now a reference to the Federal Court in its Industrial Division. The power must be exercised by a Full Court - see sub-s.118A(4B).
But there is a further question. What is "an order of the Court" for the purposes of para.143(1)(g) of the Conciliation and Arbitration Act? The sort of order contemplated by para.(g) of sub-s.143(1) is an order relating to the conduct of an organization in regard to its industrial activities as regulated by the Conciliation and Arbitration Act. That is not to say that disobedience by AMIEU of an order of the Federal Court in its Industrial Division may not ground an application for deregistration under s.143. But there is nothing in the Conciliation and Arbitration Act or for that matter in the Trade Practices Act which restricts the Federal Court to an order for deregistration where an order made against a registered organization has been disobeyed. AMIEU's argument gives insufficient weight to the fact that the matter before the Chief Judge involved an exercise of jurisdiction under the Trade Practices Act, an exercise of jurisdiction in the General Division by a single judge, and that sequestration was a consequence of failure to comply with an order made in exercise of that jurisdiction. As the Chief Judge pointed out in his reasons for judgment:

"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 this is 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 ...".

I can find nothing in the Conciliation and Arbitration Act that expressly or by implication limits the power of the Federal Court, in the exercise of its general jurisdiction, to make orders against registered organizations and to impose sanctions for failure to comply with those orders.

Sequestration "was and is a process of contempt" (Chitty J. in Pratt v. Inman (1889) 43 ChD 175 at p 179). Sequestration is one of the means of enforcement mentioned in O.42 r.31 of the Rules of the Supreme Court of Judicature. Historically its result was not to effect a forfeiture of property but to place it in the hands of the sequestrator until order of the court.

"When whatever is considered necessary to clear the contempt has been done, the sequestration is discharged by order of the Court: and the sequestrators must then give up possession on having their costs and expenses" (Windeyer J. in Australian Consolidated Press Ltd. v. Morgan supra at p.501).

As already mentioned, the writ of sequestration sought in Mudginberri's notice of motion was in such terms. It made no reference to the fine of $10,000 or the daily penalty of $2,000. Nevertheless there were difficulties in the form of writ accompanying the motion. It presupposed a continuing "wilful disobedience of the order of the Honourable Bryan Alan Beaumont, a Judge of this Court". But the order of Beaumont J. had been dissolved on 12 July when Morling J. granted a permanent injunction. Beaumont J.'s order was not thereby robbed of the effectivness it would otherwise have had; but it was not an order that was capable of being disobeyed by conduct after 12 July. The sequestration ordered was essentially by way of execution in aid of the order made by the Chief Judge on 21 July 1985. It recited that order as well as the earlier order of Beaumont J. and called upon the sequestrators to take possession of the real and personal estate of AMIEU and

"... to pay to the Registrar of this Court out of any proceeds or moneys in your hands the whole or from time to time any part of the fines totalling Forty four thousand dollars ($44,000.00) imposed on the AMIEU until the same are fully discharged and further note that we order that the costs and expenses of executing this Writ as sequestrators be taxed and after the said fines of $44,000.00 have been paid in full the (sic) be paid out of the proceeds and moneys in your hands and further note that we authorise and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and this Writ shall operate until this Court makes orders to the contrary."

In the course of his reasons for judgment on the sequestration application, the Chief Judge said:

"Counsel for the applicant seeks the issue of a writ of sequestration against the AMIEU. ... His request for sequestration is directed to securing payment of the fines. It is recognized that since the 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".

Nevertheless the material before us does not reveal how a motion for leave to issue a writ sequestering the union's property until it ceased to engage in maintaining a picket line became a request for sequestration to enforce payment of fines. There was nothing said in argument to suggest there had been an amendment to the motion. Equally, it must be said, there was no mention of any objection taken by AMIEU (which was then represented by counsel) before the Chief Judge to the order made on 18 July, by reason of the form of the motion for leave to issue a writ of sequestration. Nor was any such objection taken in the grounds of appeal. Therein lies the difficulty for the appellant. In my opinion the motion for a writ of sequestration should not have been the vehicle for the imposition of monetary penalties beyond $10,000, at any rate not without notice to AMIEU of intention to seek those penalties, and without observance of the requirements of O.40. Even in the case of the $10,000, questions arise as to the use of the writ as a form of execution. But these questions were not aired before us and I say nothing more about them.
Since AMIEU did not assert before the Chief Judge or before us that the motion for sequestration should not have been used to quantify the daily penalty contained in the order of 21 June, the views I have expressed regarding the form of sequestration that issued should not lead to the appeal against sequestration being allowed. And there would be little point in remitting the matter to the Chief Judge on that ground, for in all matters raised in its grounds of appeal the union has been unsuccessful and it is inevitable that the result would be the same.
In my view appeal No. G162 of 1985 (the appeal against the imposition of fines) and appeal No. G188 of 1985 (the appeal against sequestration) should each be dismissed.

[1985] FCA 471

17 SEPTEMBER 1985