The Honourable Robert Ian Viner v Australian Building Construction Employees & Builders Labourers Federation

[1982] FCA 81

VINER AND OTHERS v. AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS
LABOURERS' FEDERATION AND ANOTHER (No. 2) (1982 63 FLR 230
No. V23 of 1981
Contempt of Court - Evidence - Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
VICTORIA DISTRICT REGISTRY
Keely J.(1)

CATCHWORDS

Contempt of Court - Nature of contempt committed out of court - whether union "bans" and statements by union officials constitute criminal contempt by interfering with the administration of justice.

Evidence - admissibility of statements made during a conference held in private under s.27 of the Conciliation and Arbitration Act - considerations of public policy - scope of "without prejudice" privilege.

Industrial Law - jurisdiction of the Arbitration Commission to direct attendance at a conference - whether "industrial dispute" as to "industrial matters".

Contempt - Deregistration proceedings - Union bans and statements by union officials affecting potential witnesses - Interference with administration of justice - Federal Court of Australia Act 1976 (Cth), s. 31.

Conciliation and Arbitration - Conciliation and Arbitration Commission - Compulsory conference - Whether statements made at compulsory conference admissible in contempt proceedings - Existence of industrial dispute - Whether Arbitration Commission had jurisdiction to direct attendance at conference - Conciliation and Arbitration Act 1904 (Cth), ss. 27, 30 (4), 186.

Evidence - Deregistration proceedings - Union bans and statements by union officials affecting potential witnesses - Interference with administration of justice - Federal Court of Australia Act 1976 (Cth), s. 31.

HEADNOTE

Deregistration proceedings had been commenced in the Federal Court of Australia in respect of the first respondent, a registered organization. The applicants, who were also the applicants in the deregistration proceedings, commenced proceedings against the respondents charging them with comtempt of court in respect of certain work bans and statements imposed and made by the respondents which allegedly had the tendency to intimidate witnesses in the deregistration proceedings. The second to sixth respondents were either officers or members of the first respondent.

Held: (1) Evidence of statements by the respondents Gallagher and Boyd in a compulsory conference held in private by the Conciliation and Arbitration Commission was admissible in the contempt of court proceedings. There was no confidence as to the disclosure of iniquity.

Home Office v. Harman (1981) 1 QB 534; British Steel Corporation v. Granada Television Ltd. (1981) AC 1096, referred to.

(2) In any event the direction to attend the compulsory conference had not been validly given because no industrial dispute within s. 27(1) of the Conciliation and Arbitration Act 1904 existed.

Australian Federation of Air Pilots v. Flight Crew Officers Industrial Tribunal (1968) 119 CLR 16, applied.

(3)(a) The conduct proved against the first respondent was partly for the purpose of dissuading persons from giving evidence on behalf of the applicants in the deregistration proceedings or if it failed in that purpose, of dissuading them from giving evidence unfavourable to it and also partly for the purpose of persuading certain applicants in the deregistration proceedings to discontinue as applicants. The conduct did have the tendency to so dissuade the witnesses and applicants and constituted contempt of court. (b) Certain conduct of the respondents Gallagher and Boyd had a similar purpose and tendency and also constituted comtempt of court. (c) The charges against the remaining respondents had not been proved beyond reasonable doubt.

HEARING

Melbourne, 1982, May 11. #DATE 11:5:1982

NOTICES OF MOTION.

The applicants charged the respondents with contempt of court. The applicants had previously commenced proceedings to deregister the first respondent pursuant to s. 143 of the Conciliation and Arbitration Act 1904.

M. J. L. Dowling Q.C., A. G. Uren and C. N. Jessup, for the applicant Viner.

M. J. L. Dowling Q.C. and A. R. Stockdale, for the applicant Master Builders' Association of Australia.

D. M. Ryan Q.C. and R. Merkel, for the respondents.

Cur. adv. vult.

Solicitors for the applicants: B. J. O'Donovan. Commonwealth Crown Solicitor.

Solicitors for the respondents: Holding Redlich & Co.

T. J. GINNANE

JUDGE1

The Australian Building Construction Employees' and Builders' Labourers Federation (the Federation) is registered as an organization of employees under the Conciliation and Arbitration Act 1904 (the Act). On 25 September, 1981 Robert Ian Viner, as the (Commonwealth) Minister of State for Industrial Relations (the first-named applicant) together with the State of Victoria and the State of Western Australia instituted proceedings in this Court seeking an order pursuant to s.143 of the Act directing the Industrial Registrar to cancel the registration of the Federation (the deregistration proceedings).

On 4 December 1981 the Australian Federation of Construction Contractors, the Master Builders' Federation of Australia Incorporated, and the Master Builders' Associations of New South Wales, Victoria, South Australia, Australian Capital Territory and Perth, were added as applicants in the deregistration proceedings. The applicants so added will be referred to as the employer body applicants. By their statement of claim, amended pursuant to orders made on 16 October, 1981 and 4 December, 1981, the applicants rely upon a number of grounds specified in s.143(1) of the Act including the grounds specified in paragraphs (c), (h), (j) and (k) of that sub-section.

On 21 April, 1982 notice was given by the first-named applicant and the employer body applicants that they (the present applicants) would move the Court for orders punishing for contempt of court the Federation, Norman L. Gallagher, Patrick Donnelly, Philip Tate, B. Boyd and Martin Bingham. Of those respondents to the notice of motion, only the Federation is a party to the deregistration proceedings. In his final address Mr. Dowling, of Queen's Counsel, on behalf of the present applicants, conceded that on the evidence before the Court Philip Tate could not be found guilty of contempt of court. Accordingly, the motion in respect of Mr. Tate is refused.

The Court's jurisdiction in respect of the alleged contempts is conferred by s.31 of the Federal Court of Australia Act 1976 which includes the following provision:

"31.(1) Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court and, where the contempt relates to the exercise of jurisdiction in a Division of the Court, the jurisdiction to punish that contempt shall be exercised in that Division of the Court."

Section 24 of the Judiciary Act 1903 provides as follows:

"24. The High Court shall have 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."

The statement of charge required by Order 40 Rule 6 of the Federal Court Rules was in the following terms:

"STATEMENT OF CHARGE

Between the 5th April 1982 and the 21st April 1982 the Respondents have and each of them has committed contempt of the Federal Court of Australia by interference with the course of justice.

PARTICULARS

(a) On the 5th April 1982 each of the Respondents Donnelly, Tate and Boyd procured stoppages of work by all members of the Respondent Federation employed on building operations being conducted on the following sites:-

(i) 230 Collins Street, Melbourne
(ii) Fitzroy North Primary School
(iii) Williamstown Primary School

(b) On the 16th April 1982 the Respondent Bingham procured stoppages of work by all members of the Respondent Federation employed on building operations being conducted on the site of the Aspendale Special Development School.

(c) At all material times the building operations on each of the said sites were being conducted by H.M. Keast and Sons Pty. Ltd. ("the company").

(d) At all material times Reginald Keast ("Keast") was the Chairman of the Directors of the company.

(e) At the time of procuring those stoppages of work each of the Respondents, Donnelly, Tate, Boyd and Bingham informed servants or agents of the company that the reason for imposing the stoppages was because of Keast being involved in the present proceedings against the Respondent Federation for the cancellation of its registration as an organization under the Conciliation and Arbitration Act 1904 ("the de-registration proceedings").

(f) From the time of the procuring of the stoppages up to the 21st April 1982 no work was done on any of the said sites by any member of the Respondent Federation.

(g) The procuring of the stoppages of work and the continuation of those stoppages was brought about by the Respondent Federation or by the Respondent Gallagher, or by the Respondent Donnelly, or by the Respondent Tate, or by the Respondent Boyd, or by the Respondent Bingham, or each of them.

(h) The Respondent Gallagher has stated that the stoppages of work on the said sites were because of Keast being involved in the de-registration proceedings.

(i) The conduct of and the statements made by each of the respondents had the tendency to and were intended to -

(i) constitute a threat to persons participating in or supporting the de-registration proceedings, that they would be injured or victimized for so participating or supporting.

(ii) constitute a threat to persons bringing or intending to bring proceedings in the Federal Court of Australia against the Respondent Federation that they would be injured or victimized for so bringing or intending to bring such proceedings.

(iii) dissuade persons from giving evidence on behalf of the Applicants in the de-registration proceedings or dissuade them from giving evidence unfavourable to the Respondent Federation.

(iv) impose pressure on the applicants in order to influence them in the conduct of the de-registration proceedings or to discontinue the said proceedings."

As to sub-paragraph (iii) of paragraph (i) above it has been said that there can be no greater contempt than to intimidate a witness before he gives his evidence (Attorney-General v Butterworth (1963) 1 Q.B. 696 at p. 719 per Lord Denning M.R.). His Lordship added:-
"If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences."
In the same case (at page 723) Donovan L.J. referred to "frightening intending witnesses from the witness box" and "deterring potential witnesses in future cases", classing both as conduct calculated to interfere with the proper administration of the law in courts of justice. It is also clear that there is interference with the proper administration of justice where a witness is not dissuaded from giving evidence but is dissuaded from giving evidence unfavourable to one party. (See Rich J in Watson v Collings & Ors. (1944) 70 C.L.R. 51 at p. 58 and Miller "Contempt of Court" at p. 131 as to contempt of court constituted by conduct likely to deter witnesses from giving evidence or to "colour the evidence which they would otherwise have given").

As to sub-paragraph (iv) of paragraph (i) above it is clear that such conduct if proved would constitute contempt of court because it would be in violation of the fundamental requirement of justice that all citizens must have the unhindered right to have proceedings in which they are parties heard and determined in the established courts of law. (See Attorney-General v Times Newspapers Ltd. (1974) A.C. 273.)

The charges under consideration here were supported by evidence by affidavit and, by leave granted by consent, by other evidence. None of the present respondents gave evidence or called any witnesses. The elements in the charges against each of the present respondents must be established beyond all reasonable doubt. A summary of facts so established is as follows:-

1. Building operations were being conducted by H.M. Keast & Sons Pty. Ltd. (the company) on building sites at 230 Collins Street, Melbourne; Fitzroy North Primary School; Williamstown Primary School and Aspendale Special Development School. The company employed members of the Federation as builders' labourers at those sites.

2. The company is a member of the Master Builders' Association of Victoria, an association of employers registered as an organization under the Act which is a joint applicant in the deregistration proceedings.

3. Mr. Reginald Keast was the chairman of the directors of the company. Until October 1981 he was the president of the Master Builders' Federation of Australia and was and is a council member of that federation, positions which he held as the representative of the Master Builders' Association of Victoria in which body he was and is a councillor.

4. The respondent Gallagher was both the general secretary of the Federation and the secretary of its Victorian branch during the period from 5 April, 1982 to 21 April, 1982. Each of the other four named respondents to the notice of motion was an organizer of the Federation.

5. The respondent Federation on or before 5 April, 1982 made a decision to "ban" work by builders' labourers on building sites at which the company was conducting building operations. The evidence does not disclose the precise terms of the decision nor the identity of the body or person within the Federation which or who made the decision. The ban was still in force on 16 April, 1982 but by 27 April, 1982 had been "totally lifted". It appeared to be accepted by the applicants that it was lifted on 21 April, 1982. The evidence does not disclose the identity of the body or person which or who lifted the ban.

6. On the evening of 5 April, 1982 the respondent Gallagher told Mr. Ainsworth, the Chief Industrial Reporter for the Sun News Pictorial who had held that position for approximately three years, that the bans were imposed "because an executive of the company, Mr. Reg Keast, was the driving force behind the move to de-register the Federation". The respondent Gallagher also said to him that "We are going to repay a few debts. It will be tit for tat from now on".

7. (a) At approximately 10.30 a.m. on 5 April, 1982 the respondent Boyd called at the 230 Collins Street, Melbourne building site and had a meeting of the members of the Federation employed on that site. Approximately 15 minutes later he informed the company's site foreman that all members of the Federation employed on the site were being sent home and that the reason for the union's action was that the Federation, through a very reliable contact, had been told that the company was largely responsible for the deregistration proceedings. The three members of the Federation employed on the site by the company left the site about thirty minutes after Mr. Boyd arrived. As a result of information which he received on 5 April, 1982 from site foremen on this site, Mr. Keast instructed the Master Builders' Association of Victoria to notify an industrial dispute to the Australian Conciliation and Arbitration Commission (the Arbitration Commission).

(b) On the same day a person whose identity was not established by the evidence but who was admitted by the Federation in other proceedings to have been an organizer of the Federation, called at the Fitzroy North Primary School site and told the company's site foreman that he had instructed the members of the Federation on site to leave the job because the Company was the main instigator in trying to get the Federation deregistered. The evidence did not establish that any stoppage of work at that site took place on that day.

(c) On the same day at approximately 2.00 p.m. the respondent Donnelly called at the Williamstown Primary School site and told the company's site foreman that the Federation had placed a black ban on jobs being carried out by the company and that the ban had been imposed because the company was the main instigator in the deregistration proceedings against the Federation. The site foreman (Mr. Wilkins) in his affidavit said that he heard Mr. Donnelly make a statement to certain members of the Federation on the site "to the effect that no productive work was to be done" by them. However, under cross-examination by Mr. Ryan, of Queen's Counsel, on behalf of all the respondents, he agreed that Mr. Donnelly did not stop them finishing the work remaining to be done by them, that they left the site because there was no more work for them to do and that they would have left the site at that time "whether or not Mr. Donnelly had spoken to them". He said that it was a matter for future arrangement between the company and the sub-contractor as to when he and his employees came back to the site to do more work and that no-one on behalf of the company made any request for the sub-contractor to return to work on the site because there were other jobs which were more important.

(d) On 16 April, 1982 the respondent Bingham called at the Aspendale Special Development School site, introduced himself to the company's site foreman as a Federation organizer and said "I suppose you have been expecting me". Under cross-examination the site foreman agreed that the latter remark apparently was made "because by that time . . it was common knowledge that the Federation had placed a ban on" the company. Mr. Bingham then said "I am here to send the labourers home" and, in reply to a question, that it was because of H.M. Keast and Sons' involvement in the deregistration proceedings. He addressed a meeting of the five builders' labourers on the site and after the meeting told the site foreman that the labourers were going home. The labourers left the site shortly afterwards, after packing away tools, and the respondent Bingham then left the site.

8. The respondent Boyd appeared on behalf of the Federation before the Arbitration Commission on 8 April, 1982 in a hearing related to the notification by the Master Builders' Association of Victoria of the abovementioned events when Federation organizers on 5 April, 1982 called at the company's building sites at 230 Collins Street, Melbourne; Fitzroy North Primary School and Williamstown Primary School. In a public hearing in the presence of the representative of the Master Builders' Association of Victoria and the company, Mr. Boyd stated that "if that is the way the employers want to play it, well, we will play it our way . . . and we believe we will take the battle right back to the employer. We have information, or our secretary has, that H.M. Keasts are involved deeply in those matters (the deregistration proceedings and the Royal Commission) and we are willing to take the fight right back to them". He also stated that the Federation wished that the company would meet with the secretary (the respondent Gallagher) and that "if Keasts will meet our secretary to talk out the information the union has, then we might view the bans in a different light". He said that he was carrying out the directions of the secretary and the union executive; he also stated that he was "in no position to lift (the bans) at this stage" but that if the company contacted the secretary and arranged a meeting the secretary "might be amendable to" lifting the bans.

9. On 14 April, 1982 the matter again came before the Arbitration Commission, when the respondent Gallagher and Mr. Boyd represented the Federation. The parties were asked whether they had anything further to add to what had been said during the proceedings on 8 April but neither party wished to make any further statements, and the matter was then adjourned into conference. During that conference Mr. Gallagher said, amongst other things :-

(a) That since Mr. Reginald Keast was involved on the employers' committees that instigated the deregistration proceedings against the union and the Royal Commission, the company was the first on the union's list.

(b) That on the basis of his knowledge of the employers in the building industry, the company would not get any support from those employers.

(c) That he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation and, further, the payment of fines which had been imposed on members of the federation with respect to their refusal to give evidence before the Royal Commission.

As to paragraph 9 above, Mr. Ryan objected to evidence as to what was said in the conference in the Arbitration Commission on 14 April, 1982, but the evidence was admitted. Mr. Ryan submitted that the evidence was not admissible because the conference was a compulsory conference under s.27 of the Act and was held in private (s.27(6)). He submitted that the scheme of s.27 of the Act contained a very strong implication that any statements made in such a conference, when it is held in private, are statements of their nature without prejudice or are privileged on some other analogous basis. I do not consider that the Act manifests any intention of prohibiting the calling of such evidence in contempt of court proceedings in this court - cp. s.30(4) of the Act which expressly prohibits the calling of such evidence in "arbitration proceedings under this Act" unless the parties otherwise agree. In this connection Mr. Dowling also relied upon the contrast between the provisions of s.27 and those of s.186 of the Act.

Mr. Ryan also sought to rely upon public policy considerations, citing Home Office v Harman (1981) Q.B. 534. I am quite unable to accept that public policy requires that in contempt of court proceedings evidence as to the making of the statements alleged to constitute the contempt of court is inadmissible on the ground that the statements were made in conference. The following extract from Cross on Evidence (Second Australian Edition) is relevant to the submission relating to without prejudice statements. (p.287) :-
"11.43 It seems to follow from the nature of the without-prejudice privilege, that the communication which is made by one party to another in an endeavour to settle the dispute between them, is privileged only as between those parties and their agents, and only in respect of that dispute: Barden v Barden (1921) 21 S.R. (N.S.W.) 588. The privilege does not extend to statements of fact made in the course of without-prejudice negotiations, if such statements have no reference at all to the dispute between the parties, as where one of them casually admits that a statement is in his handwriting (Waldridge v Kennison (1794) 1 Esp 143) nor where the statements of fact are not reasonably incidental to those negotiations: Field v Commissioner for Railways for N.S.W. (1957) 99 C.L.R. 285 at 292."

I also accept the argument advanced by Mr. Dowling that "there is no confidence as to the disclosure of iniquity" - Gartside v Outram (1856) 27 L.J. Ch. 113, 114. That case was cited in British Steel Corporation v Granada Television Ltd. (to be reported in (1981) A.C. 1096) (1980) 3 W.L.R. 774 at p. 851 by Lord Fraser, who, as to the meaning of "iniquity", cited with approval the following passage from Lord Denning M.R. in Initial Services Ltd. v Putterill (1968) 1 Q.B. 396 at p. 405 :-
"The exception should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always - and this is essential - that the disclosure is justified in the public interest."

In any event the evidence before the court did not establish that Mr.Gallagher was ever validly directed under s.27 of the Act to attend the conference. The Arbitration Commission's power to call a conference under s.27(1) of the Act is a power which only exists for "the purposes of the performance of (its) functions in respect of an industrial dispute" and an industrial dispute must be a "dispute as to industrial matters which extends beyond the limits of any one State". On the evidence before this court the alleged "industrial dispute" did not extend "beyond the limits of any one State"; further, it was plainly not a dispute as to "industrial matters" within the meaning of the Act. In Australian Federation of Air Pilots v Flight Crew Officers Industrial Tribunal (1968) 119 C.L.R. 16 at p. 39 Taylor J said :-
"It is perhaps necessary to observe once again that it is not the industrial action taken to enforce a demand that constitutes an industrial dispute; an industrial dispute is constituted by the rejection of a demand relating to an industrial matter or matters made by one side upon the other. If, however, the demand does not relate to an industrial matter there is no industrial dispute even though industrial action is taken to enforce the demand (Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association (1956) 94 C.L.R. 614)"
At p. 35 of the same report Kitto J said :-
"Consequently a power to settle disputes can never validly be exercised to deal with the disruption or threat of disruption as if it were itself a dispute to be settled. . . . . These are trite propositions in industrial law."
The same opinion was expressed by Owen J at p. 44.

The question of the Arbitration Commission's jurisdiction was raised by the court during Mr. Ryan's submissions and was the subject of submissions by him. The applicants expressly refrained from challenging the validity of any direction to Mr. Gallagher to attend the conference on 14 April, 1982. Mr Dowling on their behalf, referred to possible embarrassment by reason of the fact that the Master Builders' Association of Victoria, one of the present applicants, had notified the alleged industrial dispute to the Arbitration Commission and said, "It would be our submission, were we free to make it, that this is a matter not only that lacks interstateness, but also is not a dispute concerning an industrial matter within the definition of the Act, but that is not what I am presently submitting to your Honour". However having regard to the "trite propositions in industrial law" to which Kitto J has referred (supra), I do not consider that this court in hearing contempt charges can simply assume that the Arbitration Commission had jurisdiction. In my opinion the evidence before this court, including the verified transcript of the proceedings before the Arbitration Commission on 8 April, 1982, clearly establishes that the Arbitration Commission had no jurisdiction in the matter and accordingly no power to direct the attendance of persons at a conference under s.27. Because of this and of the other reasons given, Mr. Ryan's objection to the admissibility of the statements made on 14 April, 1982 was over-ruled.

The Federation's conduct, as established by the evidence, included its decision to impose a ban on the work being performed at the company's building sites, its action in sending its organizers to those building sites for the purpose of bringing about the cessation of work at those sites, the statements on its behalf made by Mr. Boyd on 8 April, 1982 and the statements on its behalf made by Mr. Gallagher on 14 April, 1982, to which I have already referred. Those statements were made in the presence of the representative of the Master Builders' Association of Victoria and the company.

On all the evidence I am satisfied beyond reasonable doubt that the Federation's conduct was partly for the purpose of dissuading persons from giving evidence on behalf of the applicants in the deregistration proceedings or, if it failed in that purpose, of dissuading them from giving evidence unfavourable to the Federation and also partly for the purpose of inducing those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. I also am satisfied beyond reasonable doubt that, viewed objectively, the Federation's conduct had the tendency to so dissuade persons who are potential witnesses and also the tendency to induce the Master Builders' Associations to discontinue as applicants. Accordingly, I find that the Federation has committed contempt of the Federal Court of Australia by interfering with the course of justice.

I also am satisfied beyond reasonable doubt that the statements by the respondent Gallagher on 14 April, 1982, to which I have already referred, and which were made in the presence of the representative of the Master Builders' Association of Victoria and the company were made by him partly for the purpose of dissuading persons from giving evidence on behalf of the applicants in the deregistration proceedings or, if he failed in that purpose, dissuading them from giving evidence unfavourable to the Federation and also partly for the purpose of inducing those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. Mr. Keast gave unchallenged evidence that, "Mr.Gallagher made a statement to the effect that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation". In my opinion Mr. Gallagher there made it clear that his actions were intended by him to induce the Master Builders' Associations throughout Australia to withdraw from their role as joint applicants in the deregistration proceedings. Again, I am satisfied beyond reasonable doubt that those statements by Mr. Gallagher on 14 April, 1982, viewed objectively, had the tendency to so dissuade persons who are potential witnesses and also the tendency to induce the Master Builders' Associations to discontinue as applicants. Accordingly, I find that the second-named respondent, Norman L. Gallagher, has committed contempt of the Federal Court of Australia by interfering with the course of justice.

As to the third-named respondent, Patrick Donnelly, on a consideration of the whole of the evidence as to his conduct at the Williamstown School site on 5 April, 1982, I am not satisfied beyond reasonable doubt that he had any of the intentions alleged in sub-paragraphs (i), (ii), (iii) and (iv) of paragraph (i) of the statement of charge. Similarly on the evidence I am not satisfied that the conduct of Mr. Donnelly at that site had any of the tendencies alleged in sub-paragraphs (i), (ii), (iii) and (iv) of paragraph (i) of the statement of charge. At the material time, approximately 2.00 p.m. on 5 April, 1982 the company, through its chairman of directors Mr.Reginald Keast, had already been informed by the site foremen at the 230 Collins Street, Melbourne site of the cessation of work by the members of the federation at that site and of the reason given by Mr. Boyd for such cessation of work; it was as a result of that earlier information as to the ban that Mr. Keast had given instructions to the Master Builders' Association of Victoria. Accordingly, the motion in respect of Mr. Donnelly is refused.

As to the fifth-named respondent, B. Boyd, I am satisfied beyond reasonable doubt that both his conduct on 5 April, 1982 on the building site at 230 Collins Street, Melbourne, and his statements at the Arbitration Commission hearing on 8 April, 1982, to which I have already referred, constituted contempt of the Federal Court of Australia by interfering with the course of justice. On 5 April, 1982 he was the first person to implement the ban on a site being directly responsible for Federation members "being sent home" and he was the first person to tell the company "the reason for the union's action". On 8 April, 1982 he represented the Federation and told the Master Builders' Association of Victoria, the company and the Arbitration Commission that "we will take the battle right back to the employer". I am satisfied beyond reasonable doubt that Mr. Boyd's conduct on both of those days was intended by him to dissuade persons from giving evidence on behalf of the applicants in the deregistration proceedings or if he failed in that purpose, to dissuade them from giving evidence unfavourable to the Federation and was also intended to induce those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants in the said proceedings. Again, I am satisfied beyond reasonable doubt that that conduct, viewed objectively, had the tendency to so dissuade persons who are potential witnesses and also the tendency to induce the Master Builders' Associations to discontinue as applicants. Accordingly, I find that the fifth-named respondent, B.Boyd, has committed contempt of the Federal Court of Australia by interfering with the course of justice.

As to the sixth-named respondent, Martin Bingham, on a consideration of the whole of the evidence as to his conduct as the Aspendale Special Development School site on 16 April, 1982, I am not satisfied beyond reasonable doubt that he had any of the intentions alleged in sub-paragraphs (i), (ii), (iii) and (iv) of paragraph (i) of the statement of charge. Similarly, on the evidence I am not satisfied that the conduct of Mr. Donnelly had any of the tendencies alleged in sub-paragraphs (i), (ii), (iii) and (iv) of paragraph (i) of the statement of charge. The only evidence of any material conduct by him relates to 16 April, 1982, some 11 days after the company, through its chairman of directors Mr. Reginald Keast became aware of the ban and gave instructions to the Master Builders' Association of Victoria for the institution of proceedings in the Arbitration Commission. As Mr. Coustley, the site foreman, said in evidence "by that time it was common knowledge that the Federation had placed a ban on" the company. Accordingly, the motion in respect of Mr. Bingham is refused.

The respondents through their counsel sought an opportunity to consider their position in the event that they were found guilty of contempt of court. In order to enable them to do so the further hearing of the motion in respect of the respondent Federation, the respondent Gallagher and the respondent Boyd will be adjourned to 10.15 a.m. next Friday, 14 May, 1982.

JUDGE2

These reasons for judgment are intended to be read as if there were incorporated in them the reasons for judgment delivered on 11 May, 1982 when the court made orders that the first-named, second-named and fifth-named respondents (the three respondents) be adjudged guilty of contempt of court. Until the time of the making of those orders none of the respondents had given evidence or called any evidence or advanced any submissions as to the question of penalty. When the hearing preceding these orders concluded on 3 May, 1982, Mr. Ryan Q.C. on behalf of the respondents, in answer to a question from the court, said that the respondents wished to consider their position in the event that they were found guilty of contempt of court. They have now done so and certain submissions have been put to the court on their behalf by Mr. Ryan.

Each of the three respondents has been found guilty of contempt of court consisting of intimidatory conduct which has two aspects. The first aspect consisted of intimidatory conduct which was engaged in for the purpose of, and with the tendency to, dissuade persons from giving evidence on behalf of the applicants in the deregistration proceedings or, if the respondents failed in that purpose, of dissuading them from giving evidence unfavourable to the federation in those proceedings.

There is high judicial authority for the view, which I respectfully adopt, that there can be no greater contempt than to intimidate a witness before he gives his evidence (Attorney-General v Butterworth (1963) 1 Q.B. 696 at p.719 per Lord Denning M.R.). In this community the courts of law exist for the benefit of all citizens to enable them to have their claims and counterclaims heard and determined in accordance with the law. Plainly the courts will not be able to determine those cases in accordance with the law if one party to the litigation is allowed to frighten potential witnesses into refusing to give evidence at all or to frighten them in such a way that the evidence that they could give, and would otherwise give, is coloured or diluted into evidence which is not unfavourable to the party engaging in the conduct. In Watson v Collings and Ors. (1944) 70 C.L.R. 51 at p.58, referring to the sending of a telegram to a person who "would or might be, called as a witness for the plaintiff", Rich J said :-
"No court can allow to pass without observation an act calculated to affect the testimony of a witness, or to embarrass him in giving evidence. Although in the result the transmission of the letter does not appear to have influenced Mr. Gahan to disregard his duty as a witness, as he gave his evidence freely, independently and candidly, it is necessary to say that it is against the law for any person who has any authority or means of influence over a witness to use it for the purpose of affecting his evidence."

In Attorney-General v Times Newspapers Ltd. (1974) A.C. 273 Lord Diplock (at p.309) referred to influence or pressure which might cause witnesses to be unwilling to give evidence with candour at the trial and to the risk of influencing someone who might be called as a witness to alter his evidence or to decline to testify. Lord Simon (at p.318) said that it would unquestionably be contempt of court if an employer threatened a witness with dismissal whether before, pending or after trial and added that private pressure on a witness would never be justifiable and that witnesses must be able to give honest and fearless testimony. Lord Reid (at p.296) said that in order to prevent the trial from being unfair "comment likely to affect the minds of witnesses . . . must be stopped . . . ". The present case deals with intimidatory conduct - not simply with comment.

The second aspect of the contempt of court committed by each respondent is that each engaged in intimidatory conduct for the purpose of, and with the tendency to, induce those Master Builders' Associations which are applicants in the deregistration proceedings to discontinue as applicants. It is difficult to imagine a greater contempt than to engage in such conduct for the purpose of inducing a party to discontinue. Any such conduct violates the fundamental purpose of out system of justice that all citizens must have the right to obtain the decision of a court upon all the evidence properly available in proceedings in which they are parties. That principle is breached by conduct which is intended to frighten an applicant into discontinuing or which has the tendency to induce an applicant to so discontinue by reason of fear brought about by the conduct.

It was not suggested that the conduct of any respondent which was found to constitute contempt of court, was in any way due to any misapprehension as to the respondent's legal obligations. No evidence in mitigation of penalty was placed before the court by any of the respondents after they had been found guilty and had time to consider their position in the light of the finding of guilt. After hearing the submission as to penalty put on their behalf I said that in considering my decision on the appropriate penalties -
"I must assume . . . that each respondent has been fully advised as to the seriousness of its position; that each has been advised that it is . . . common for persons found guilty of contempt of court to express regret, to give some assurances as to future conduct. Now, I note that no such expression of regret has been forthcoming, no affidavits have been filed indicating any change of heart on the part of any of the persons involved. I think I should draw your attention expressly to those two matters, Mr. Ryan . . . I shall assume . . . that these matters have been fully considered and that a considered decision to not put any such material before the court has been made. Now, if you want an opportunity to consider that, either with Mr. Merkel or with your instructors, I am quite happy to give it to you."

MR. RYAN: "We understand what your Honour has put, but the submissions which we made were of course put on instructions and we have nothing further to add, your Honour".

No respondent has expressed any regret or given any assurances, either personally or through his counsel, as to his or its future conduct. The failure of each respondent to express regret or to give any assurances as to future conduct is, of course, not a reason for imposing higher penalties than those which would otherwise be appropriate to the contempt of court of which each has been found guilty. Its only relevance is that, where such a course is followed, such matters have been treated as grounds for imposing no penalty or a lower penalty than would otherwise be the case in respect of a particular contempt. (see, for example, Taylor v Smith (1949) 65 C.A.R. 1137)

Mr. Ryan submitted that the contempts by the respondents in these proceedings all occurred "in an industrial context" and should be so viewed by the court in determining penalty. He developed that submission at some length (pp.244-251 of the transcript) referring to "the hostility engendered and maintained by pending deregistration proceedings", the "cut and thrust of the conflict" and said that "one can understand, if not excuse an insensitivity on the part of those embroiled in the conflict to the considerations affecting the court . . . and to the considerations affecting the processes of that court". Mr. Ryan concluded this part of his submission by submitting that the court should incline to leniency rather than impose "a penalty which could be regarded as harshly retributive", urging in support of the desirability of that course the ". . . proper concern of the court in this wider industrial relations context . . . not to do anything which could impede a retreat from the confrontationist position in which the parties have been concerned since the deregistration proceedings began to entrench themselves."

One difficulty that I have with this carefully worded submission is that there does not appear to be any evidence as to the likelihood of any "retreat from the confrontationist position" by the federation - other than the lifting of the bans on the day on which the injunctive proceedings came before this court pursuant to the order of Smithers J. However, even if there were such evidence of a retreat from confrontation this court must determine the question of penalty on the same considerations as those which would apply in the High Court of Australia or in the Supreme Courts of the States. Having determined the penalties which would otherwise be appropriate, it would be quite wrong for this court to refrain from imposing those penalties by reason of a "concern" that the imposition of such penalties "could impede a retreat from the confrontationist position".

The conduct of which the respondents have been found guilty was intended to and also, viewed objectively, had the tendency to interfere with the course of justice in this court both by deterring witnesses and by inducing applicants to withdraw from the deregistration proceedings. It is obviously important that witnesses and parties in the deregistration proceedings have the same protection of the law from any intimidatory conduct which constitutes contempt of court as that afforded to witnesses and parties in any other proceedings in the court.

This court hears and determines cases in which it is alleged that companies have broken the law and penalties and fines are sought and imposed. Under the Trade Practices Act such penalties are imposed in respect of unlawful actions by companies as traders; under the Conciliation and Arbitration Act fines are imposed in respect of their unlawful actions as employers. For example, unions institute proceedings under s.5 of the Act where an employer has dismissed an employee (or injured him in his employment) because he is a member of an organization of employees or because he is entitled to the benefit of an award. Some of the companies fined have been very large and powerful corporations. If, after the institution of s.5 proceedings against it, any such company locked out all its employees and closed down its factories in an attempt to dissuade witnesses or to induce the applicant union to withdraw its proceedings, it would not avail the company to submit, in any consequential proceedings for contempt of court, that, by reason of the "industrial relations context" the court "should incline to leniency" and should not "do anything which could impede a retreat from the confrontationist position in which the parties have been concerned since" the institution of the proceedings.

In such a case the court would impose penalties designed to make it quite clear to all persons that if they are or become parties to proceedings in this court they must not take any intimidatory action against witnesses or parties. The judicial system can only continue to retain public confidence if it adheres to the fundamental principle that there must be equal application of the law to all litigants.

At the hearing as to penalty it was said that it was agreed between the parties that the bans which came into effect on 5 April, 1982 were not lifted until Tuesday 20 April, 1982 and that work was fully resumed on the sites the subject of the bans on Thursday 22 April, 1982. Accordingly, I can not accept Mr. Ryan's submission that the bans were quickly lifted. Further they were only lifted after Smithers J. sat on 16 April, 1982 to hear an application for injunctions in respect of the bans. The Federation was given notice of that application on 16 April, 1982 and was represented by Mr. Merkel of counsel. The quite lengthy period of time during which the bans were in force may be contrasted with some impulsive action of a person, for example, under the influence of strong emotion, cp. decision of Starke J in R. v Wright (1968) V.R. 164 AT P. 167.

Mr. Ryan also sought to place some reliance upon the fact that the contempt found proved was one of conduct having a tendency to interfere with the administration of justice and "that there has been no evidence of actual interference with any witness or party". I adopt with respect the words of Cross J., in rejecting a similar submission in In re B (J.A.)(An Infant) (1965) 1 Ch. 1112 at p. 1123 :-
"I cannot take that view of the matter at all . . . the mere fact that no harm has been done in this particular case is neither here nor there. It would be unfortunate if the idea got abroad that if people threaten witnesses in this way, the worst that is likely to happen to them will be that they will have to pay some costs and make an apology. That is certainly not a course which I can adopt in this case. Nor do I think that the case is appropriate for a fine. This is a case in which I think it is my duty to make a committal order."

The present respondents and any other persons who are likely to commit similar acts must be made to realize that, when such acts are proved before this court, punishment will follow and that in future cases penalties will be of whatever severity is necessary to ensure that such acts are not committed and that parties and potential witnesses are accorded the protection of the law to which they are entitled. The penalties imposed on the three respondents must be sufficient to make clear the serious view which this court takes of the respondents' conduct. It must be understood also that any repetition of such conduct will invite substantially heavier penalties.

I have taken into account all that has been put to me by Mr. Ryan on behalf of the respondents - except where a submission has been expressly rejected in these reasons. In the light of those submissions I have determined upon penalties which I consider to be the lowest which I can impose in the circumstances of this case.

So far I have dealt with the question of penalty without distinguishing between the three respondents. As to the Federation itself there is little more that need be said. Mr. Ryan informed the court that it has a membership which ranges between 25,000 and 30,000 members. It has been found guilty of intimidatory conduct partly directed towards potential witnesses and partly directed towards those Master Builders' Associations which are applicants in the deregistration proceedings. That conduct consisted of bans which continued from 5 April, 1982 until 20 April, 1982. There is nothing to suggest that it was not a deliberate use of intimidation maintained throughout that period including statements made on its behalf to the Arbitration Commission in the presence of the company and the Master Builders' Association of Victoria. Mr. Ryan conceded that the nature of the conduct was such that it would more often than not be reported by the media - a fact known to the "protagonists" including the Federation. Notwithstanding the matters urged by Mr. Ryan I order that the respondent Federation pay a fine of $15,000-00, such fine to be paid to the Registrar within 7 days by a person properly authorized in writing by the Federation.

The respondent Gallagher made a clear and unequivocal statement as to his purpose when on 14 April, 1982 he told the Arbitration Commission, in the presence of the representative of the Company and of the Master Builders' Association of Victoria, that he expected his actions would achieve a withdrawal of support by the Master Builders' Associations throughout Australia for the deregistration proceedings against the Federation. It is plain that Mr. Gallagher was not merely stating what he thought was likely to happen but was expressly specifying the objective which he personally sought to achieve by his actions. Mr. Ryan pointed out that the statement was made in answer to a question and I shall take that fact into account in considering penalty. I also accept that Mr. Gallagher was not using the conference as a forum from which to reach a wider audience than the company and the Master Builders' Association of Victoria - but the Association itself does not constitute a narrow audience. Further, it has not been suggested at any time in these proceedings - in cross-examination or in address - that Mr. Gallagher did not mean to say what he said. A further indication both of Mr. Gallagher's purpose - and of the way in which he sought to influence applicants and potential witnesses - appears from the statement he volunteered to the Company's representative at the conference on 14 April, 1982 that, on the basis of his knowledge of the employers in the building industry, the company would not get any support from those employers.

In paragraph 8 of my earlier reasons for judgment I referred to certain statements by Mr. Boyd on 8 April, 1982 that he was carrying out the directions of Mr. Gallagher who might be amenable to lifting the bans if the Company contacted him and arranged a meeting to "talk out" the information Mr. Gallagher had as to the company being "deeply involved" in the deregistration proceedings. Those statements were not denied or qualified by Mr. Gallagher on 14 April, 1982 when he appeared with Mr. Boyd for the Federation and was given an opportunity to add to what had been said on 8 April, 1982. Nor has it been suggested in these proceedings that Mr. Boyd's statements to the Arbitration Commission on 8 April, 1982 were not correct.

As to Mr.Gallagher's role under the registered rules of the Federation, as General Secretary he is a member of the Federal Management Committee. There are seven other members on that Committee, the quorum at a meeting is formed by the President, the General Secretary and one other member and a meeting can be convened "at any time". Further, under Federal Rule 11 (f):-
"The General Secretary after consultation with the President may between meetings of the Federal Management Committee, exercise and perform all or any of the powers and duties of the Federal Management Committee (other than the power to suspend, expel, remove from office or fine a member of the Federation) as may be necessary to ensure the continued effective functioning of the Federation or to promote the interest of its members".
In my opinion Mr. Gallagher had power under that sub-rule to lift the bans - as was suggested by Mr. Boyd on 8 April, 1982 and not denied by Mr. Gallagher on 14 April, 1982.

In the light of all the evidence, after giving full weight to everything that Mr. Ryan has urged and to the fact that there is no evidence of any previous convictions, I consider that Mr. Gallagher's conduct was such that he must be sent to prison for a period of two calendar months.

I should perhaps draw attention to Order 40 Rule 12 of the Federal Court Rules which provides that:-
"12. Where an accused person is committed to prison for a term, the Court may order his discharge before the expiry of the term".
In Re Grant & Ors. 65 C.A.R. 238 eight persons successfully applied to the Commonwealth Court of Conciliation and Arbitration "for orders discharging them from imprisonment imposed upon them by orders of committal for contempt of Court". In dealing with the application Kelly C.J. (at p.240) said:-
"In my opinion the Court should deal with these applications with deference to this principle: that they should not be granted unless the Court is satisfied that the conduct of the applicants is such that the authority of the Court, which the disobedience of its orders impugned has been accepted and restored. In this connexion the Court must be satisfied of the genuineness of the statements made to it by the applicants and their actions allegedly designed to express their submissions to its authority. . . .

As to the statements made by the applicants, it may be said that they represent a complete abandonment of their attitude as expressed by most, if not all, of them prior to their committal. . . .

Their expressions of regret and apology have been publicly made. They have, as I have pointed out, expressly and publicly, on the floor of the Court, declared their acceptance of the obligations to obey the Court's orders irrespective of their beliefs or supposed beliefs about the obligations under the union rules."
It is open to Mr. Gallagher to apply at any time for his discharge supporting his application by such evidence as he thinks fit.

Lastly, as to the fifth-named respondent, Mr. B. Boyd, I regard his conduct as constituting a serious contempt of court for reasons which will sufficiently appear from my earlier reasons for judgment. However, although serious it is much less serious than that of Mr. Gallagher and in my opinion does not warrant the imposition of a term of imprisonment, as there are two mitigating factors in addition to the absence of any evidence of previous convictions:-

1. He was carrying out the directions of Mr. Gallagher and the union executive.

2. He had no power to lift the bans.

Nevertheless his conduct calls for considerably more than the order previously pronounced that Mr. Boyd be adjudged guilty of contempt of court; it is no answer to a charge of contempt to say that he was carrying out directions although I regard that fact as relevant to penalty. In all the circumstances the court orders that the fifth-named respondent, B. Boyd, shall pay a fine of $500-00, such fine to be paid to the Registrar within 7 days by a person properly authorised in writing by the said B. Boyd. In default of payment of such fine within the time so fixed the respondent B. Boyd shall be imprisoned for 14 days.

In his final address Mr. Ryan submitted that the organizers were "significantly less guilty of contempt than (a journalist) who wrote the articles for the . . . newspaper and did in a real way lend his mind and will to the publication of what is argued . . . to be a threat to the due administration of justice in this court". No journalist or newspaper has yet been charged with contempt of court consisting of the giving of publicity to the three respondents' intimidation of potential witnesses and of the employer body applicants. In those circumstances it is neither necessary nor desirable for me to express any opinion on that submission by Mr. Ryan. However, the submission having been made, the newspaper proprietors, television corporations and journalists will have an opportunity to consider their position and obtain legal advice before any further publicity is given to any "threats to the due administration of justice".

It is perhaps desirable to refer to the wording of the order which I have made for the imposition of fines upon two of the respondents. When the court orders that a person be imprisoned the court's intention is obviously that that respondent shall spend a period of time in prison. Plainly the court would not permit some other person - to spend the period in gaol instead of the respondent. That is because the court has imposed a term of imprisonment as the appropriate punishment for the conduct concerned, having regard to the need to deter that respondent from similar conduct in the future as well as the need to deter other persons who may be likely to engage in similar conduct. Obviously there would be no such deterrence, to the respondent or to others, if it were known that some other person would be allowed to go to prison instead. For the same reasons, when the court directs that a respondent pay a fine the court's intention is plainly that the fine be paid by that respondent and not by some other person - whether through fear, philanthropy or foolishness.

Of course, there is nothing to prevent a person from offering to a person who has been fined by a court, a sum of money in order to enable that person to pay the fine. But it is clear that a person or body which has been fined and is offered money with which to pay the fine could, if he or it wished, decline the offer refuse to pay the fine and suffer whatever consequences the law provides in such a case. It could be said that the payment of the fine by some person not authorised by him to do so constitutes an interference with his freedom to choose to refuse to pay the fine. On the other hand, where a person who has been fined pays the fine, using money given to him for that purpose, the decision to pay the fine is his - and it cannot later be contended that he did not pay the fine.

The evidence in this case discloses that Mr. Gallagher told the Arbitration Commission that he expected that his actions would achieve the payment of fines which had been imposed on members of the Federation with respect to their refusal to give evidence before the Royal Commission. In the light of that evidence I have decided to state explicitly in the orders made by the court that the fines shall be paid by each respondent or by an agent properly authorized in writing by him.

The Registrar is directed that, if there be any doubt as to whether a person seeking to pay the fine is properly authorized by the particular respondent, he is to give notice to the respondent of the date, time and place at which that question will be heard and determined by the court.