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

[1981] FCA 228

Re: THE HONOURABLE ROBERT IAN VINER (who sues as the Minister of State for
Industrial Relations), HER MAJESTY THE QUEEN IN RIGHT OF THE STATE OF
VICTORIA, and HER MAJESTY THE QUEEN IN RIGHT OF THE STATE OF WESTERN
AUSTRALIA
And: THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS'
FEDERATION (1981) 56 FLR 5
No. 23 of 1981
Practice and Procedure - Contempt - Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.(1)

CATCHWORDS

Practice and Procedure - costs in proceedings before Federal Court in proceedings under Conciliation and Arbitration Act - whether s.197A applies - whether motions for contempt from these proceedings within s.197A.

Conciliation and Arbitration Act 1904 ss.116, 118A, 143, 197A

Federal Court of Australia Act 1976 ss.4, 23, 31, 43

Contempt - Criminal contempt - Publication of newspaper editorials - Pending proceedings - Whether contents of editorials constituted contempt of those proceedings - Probability of future contempt - Restraining orders - Costs - Federal Court of Australia Act 1976 (Cth), s. 31.

Costs - Proceedings under Conciliation and Arbitration Act - Party thereto bringing contempt proceedings against person not a party - Separate and independent proceedings - Costs follow event - Conciliation and Arbitration Act 1904 (Cth), ss. 118A, 197A - Federal Court of Australia Act 1976 (Cth), s. 43.

HEADNOTE

On 25th September, 1981, at 1 p.m., the applicants commenced deregistration proceedings against the respondent in the Federal Court. On 1st October, 1981, the respondent by notices of motion sought orders that the publishers of the Age and Herald newspapers be dealt with for contempt of the Federal Court in respect of editorials published on 25th September, 1981, and 29th September, 1981, and be restrained from committing any further contempt of the court.

Held: (1) As the Age editorial had been published on 25th September, 1981, prior to the commencement of the deregistration proceedings it could not constitute a contempt of court of the type presently under consideration.

James v. Robinson (1963), 109 CLR 593, followed.

(2) The Herald editorials which were published after the commencement of the deregistration proceedings did not constitute a contempt of court: (a) as reading the editorials as a whole the deregistration proceedings were not the immediate occasion for their publication and they did not have any tendency to interfere with or obstruct or embarrass the due conduct of the deregistration proceedings or the fair administration of justice; (b) the commencement of deregistration proceedings could not prevent public discussion of a matter which could fairly be regarded as one of public interest. Davis v. Baillie, (1946) VLR 486; John Fairfax & Sons Pty. Ltd. v. McRae (1955), 93 CLR 351; Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937), 37 SR (NSW) 242, referred to.

(3) As the respondent had not established a real probability that any future conduct by the publishers was imminent which if engaged in would constitute a contempt of court in relation to the deregistration proceedings the application for restraining orders, in the nature of a quia timet injunction, should be refused.

(4) The contempt proceedings were separate and distinct from the existing deregistration proceedings and accordingly the persons against whom contempt orders were sought were not thereby made parties to the proceedings therein. Therefore assuming that s. 197A of the Conciliation and Arbitration Act 1904 otherwise applied, it did not prevent an order for costs being made against the respondent who had brought the notices of motion. Such an order should be made.

O'Shea v. O'Shea and Parnell; Ex parte Tuohy (1890), 15 PD 59, applied.

Quaere whether s. 197A of the Conciliation and Arbitration Act 1904 applies to proceedings in the Federal Court of Australia.

HEARING

Melbourne, 1981, October 16, 28-30; November 16, 19; December 3-4. #DATE 4:12:1981

NOTICES OF MOTION.

The respondent sought, inter alia, orders that David Syme & Co. Ltd. and the Herald & Weekly Times Ltd. be punished for contempt of court and be restrained from committing any further contempt.

D. M. Ryan Q.C., R. Merkel and P. R. A. Gray, for the Australian Building Construction Employees' and Builders Labourers' Federation.

J. Sher Q.C. and A. G. Uren, for David Syme & Co. Ltd.

E. D. Lloyd Q.C. and P. Buchanan, for the Herald & Weekly Times Ltd.

Cur. adv. vult.

Solicitors for the Australian Building Construction Employees' and Builders Labourers' Federation: Holding Redlich & Co.

Solicitors for David Syme & Co. Ltd.: Gillotts.

Solicitors for the Herald & Weekly Times Ltd.: Corr & Corr.

T. J. GINNANE

ORDER

Orders accordingly.

JUDGE1

On 3 December 1981 the court refused motions by the Australian Building Construction Employees' and Builders Labourers' Federation against David Syme & Co. Limited and The Herald & Weekly Times Ltd. Those motions were taken out in proceedings which are called the deregistration proceedings in which the applicants, Robert Ian Viner, the State of Victoria and the State of Western Australia were seeking orders directing the Industrial Registrar to cancel the registration of the Federation. Those proceedings were taken pursuant to s.143 of the Conciliation and Arbitration Act 1904, as amended, and there is no doubt that those were proceedings in a matter arising under that Act.

When judgment was given, leave was granted to David Syme & Co. Limited and The Herald & Weekly Times Ltd. to move for an order for costs, the reason being because of the effect of s.197A of the Act. The relevant provisions of that Act are as follows:

"197A. A party to . . . a proceeding . . . before the Court . . . in a matter arising under this Act . . . shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause."

It is noted that in that section, by definition, the words "the Court" mean the Australian Industrial Court created by the Act and not the Federal Court of Australia, s.4 of that Act.

The question immediately arises whether that section has any application to a proceeding before the Federal Court. It is recognized that traditionally the Federal Court has acted on the basis that s.197A does so apply and accordingly has refused to make orders against a party to a proceeding before the Federal Court in a matter arising under the Conciliation and Arbitration Act. It was argued that the effect of s.118A of the Act is sufficient to ensure that s.197A does so apply to proceedings before the Federal Court. That section provides in substance that the jurisdiction and powers vested in or exercisable by the Australian Industrial Court or a judge of that court are, except in certain specified matters, vested in and exercisable by the Federal Court of Australia or a judge of that court. By sub-section 1(b), it provides that a reference in the Conciliation and Arbitration Act to "the Court" other than in enumerated sections including s.116 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. Section 116 of the Conciliation and Arbitration Act is referred to specifically since that is the section which vests power in the Industrial Court to make such orders as it thinks just as to the costs and expenses of proceedings before that court. The powers conferred by that section do not apply to the Federal Court.

The deregistration proceedings come to the Federal Court pursuant to s.143 of the Conciliation and Arbitration Act, s.118A of that Act, and s.19 of the Federal Court of Australia Act 1976. That section provides that the court, in this case the Federal Court, has such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament. In that section, the word "matters" is to be given its technical meaning of matters or things in controversy between parties the subject of legal proceedings.

When one turns again to s.197A of the Conciliation and Arbitration Act, it is noted that its application is limited to a party to a proceeding before the Australian Industrial Court. On its face, it is not to apply to a party to a proceeding before the Federal Court. I do not find it necessary to resolve this question in these proceedings, but I draw attention to it since it might require consideration by the Legislature in due course.

The analysis made already is of assistance, however, in determining the issues between the parties. The submission made on behalf of the publishers of the newspapers is that the motions for contempt are not proceedings in a matter arising under the Conciliation and Arbitration Act, and in any event, neither is a party to a proceeding before the Court in a matter arising under the Conciliation and Arbitration Act. It is pointed out that the restriction on the power to award costs or, if it is more appropriate, the benefit conferred upon a party to be freed from the liability to pay costs, all relate to costs incurred by "any other party to that proceeding". That must be a party to the proceeding in a matter arising under the Conciliation and Arbitration Act.

Counsel for the Federation submits that the cases to which I am about to refer can all be distinguished from the facts of the present case and that in any event, in the present case, what is being sought, in addition to a punishment for contempt, is for an injunction to restrain threatened contempts of court, that the injunctions are in the nature of orders to ensure the proper administration of justice in a matter before this court and are not to be treated as a criminal matter but as an aid to the proceedings in a matter arising under the Conciliation and Arbitration Act, and, therefore, the authorities referred to should not apply.

Reference has been made to the meaning to be given to the word "proceeding" and reference is made to Halsbury, 3rd Ed., Vol. 1 at p.5. Reference also has been made to the definition of the word "proceeding" in the Federal Court of Australia Act 1976, s.4. In my opinion, the word "proceeding" in s.197A of the Conciliation and Arbitration Act is to be read as an action between parties to a matter arising under the Act. In that sense, it is capable of including all steps arising in that matter and therefore is to be given both the meanings of a step in a proceeding as well as the action itself. That really does not assist greatly in the resolution of the matter, and in order to do this, it is necessary to analyze the nature of the relief sought in the motions and the basis upon which the motions come before this court.

The motions for contempt are based upon s.31 of the Federal Court of Australia Act which confers power upon the court to punish contempts of its power and authority. Section 23 of the Federal Court of Australia Act confers a power on the court in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, as the court thinks appropriate. It is pursuant to the last section that the injunctions are being sought.

The importance of this analysis, however, is that the proceedings the subject of the motion are proceedings taken under s.31 of the Federal Court of Australia Act and it is in those proceedings that it is sought that the injunction should be made.

Accordingly, in my opinion, there is no basis for drawing a distinction between cases where a past contempt is under consideration and the motion is being considered after the completion of the legal proceedings in which the contempt occurred on the one hand, and on the other, threatened contempts and injunctions to prevent them being committed during the time legal proceedings are pending. In my opinion, the principles are the same in both cases. They are both dependent upon a contempt of a kind which is commonly referred to as a criminal contempt and as referred to in the reasons for judgment given on 3 December 1981.

There is authority for the proposition that contempts of that kind are separate from the proceedings which give rise to the contempt. In order for such contempt to arise, there must be in existence legal proceedings and conduct by a person, whether a party to those proceedings or not, which has the effect of interfering with the due administration of justice in the conduct of that existing proceeding.

The leading case on this matter is O'Shea v. O'Shea and Parnell; Ex parte Tuohy (1890) 15 P.D. 59 where Cotton L.J. and Lopes L.J. each expressed the view that contempt proceedings commenced by way of motion in an existing proceeding are criminal in nature, but at the same time are separate and distinct from the proceedings which gave rise to the contempt and to initiate proceedings against the person who has committed the contempt, it is appropriate that a motion be taken out in the existing proceedings naming the person against whom attachment is sought for contempt. At pp.62-3 Cotton L.J. said:

"The present proceeding is for a contempt of Court. Of course, there are many contempts of Court that are not of a criminal nature; for instance, when a man does not obey an order of the Court made in some civil proceeding, to do or to abstain from doing something - as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt - that is really only a procedure to get something done in the action, and has nothing of a criminal nature in it. But is that so here? No doubt the notice of motion is so entitled in the divorce suit, but it is also entitled in the matter of an application against Tuohy (the appellant), and the essential part of the motion is the application to commit Tuohy for contempt. It is convenient that the notice should be entitled in the cause to show to what matter the motion to commit refers; but what gives the Court the power to act is the fact that the appellant has done something to prevent the course of justice by preventing the divorce suit from being properly tried. That is clearly a contempt of Court of a criminal nature. Authorities have been cited which show that everything done to prejudice the judge or jury in the trial of an action is a criminal act, because it is an attempt to prevent the course of justice. It is argued by the appellant that the appellant that the act is complained of, not by the Attorney-General as a public wrong, but by the petitioner, who complains of it as a personal injury; but that makes no difference. It is conceded that it was a wrongful act, otherwise there could be no fine or imprisonment. And when you concede that it is a wrongful act, you find that, although it is headed in the divorce action, it is not a proceeding in the action - not a proceeding for the purpose of obtaining anything in the action, but an application to punish an attempt to induce the jury not to tery the case properly, which is as much a criminal act as an attack upon the judge himself."

Likewise, at p.65 Lopes L.J. expressed a similar opinion.

That expression of opinion has been acted on in many other cases in England and Australia. In this regard I merely refer to, without quoting from the following cases, R. v. B. (1972) W.A.L.R. 1 at p.9, and Jones v. Jones (1898) 19 N.S.W.L.R., in cases at law, p.43. The court, a full court, comprising the Chief Justice and Justices Stephen and Cohen referred to and applied O'Shea v. O'Shea in relation to contempt proceedings arising out of a matrimonial proceeding and adopted the views expressed in O'Shea v. O'Shea. On my reading of the Victorian case of Critchely v. Australian Urban Investment Ltd. (1979) V.R. 374, the full court of the Supreme Court of Victoria adopted the same approach.

Insofar as it is necessary, the Federal Court Rules of Court, O.40 r.5 is based on that concept. It provides that 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, but if a separate proceeding for punishment of the alleged contempt is commenced, the proceeding so commenced may be continued unless a court otherwise orders. The Federal Court Rules proceed on the basis that normally where a criminal contempt of the type involved here is alleged to have occurred, it is brought before the court in a summary manner by way of motion in the pending proceedings.

In my opinion, in adopting and applying the statements in O'Shea v. O'Shea those contempt proceedings based on the motion are not, and do not thereby become, proceedings in the then existing proceedings, but are separate and distinct therefrom. Applying those principles to the present case, the persons against whom contempt orders are sought are not thereby made parties to the proceedings in the deregistration proceedings, being the matter arising under the Conciliation and Arbitration Act.

Accordingly, assuming for the purposes of this matter that s.197A otherwise applies, in my opinion it does not prevent the court from making an order against a party to the deregistration proceedings when the motion for contempt brought by that party fails. The persons against whom the motion sought orders are not parties to the deregistration proceedings and do not come within the phrase in s.197A as, "any other party to that proceeding". Accordingly, in those circumstances, s.197A does not prevent the court making an order against the Federation in this case.

I should add that counsel for the newspaper publishers also sought to establish and made submissions that the motions for contempt had been instituted vexatiously or without reasonable cause. On the views I have expressed that does not become relevant, but in any event in my opinion, no such case has been made out. I considered the application of that section in relation to costs in the case of Heidt v. Chrysler Australia Limited (1976) 26 F.L.R., p.271, and, applying the principles therein set out to the facts of this case, I would not come to the view that the motion was taken out vexatiously or without reasonable cause.

Finally, the power to award costs in Federal Court proceedings is conferred by s.43 of the Federal Court of Australia Act 1976 and I read:

"43.(1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded."

For reasons already given I have expressed the view that s.197A of the Conciliation and Arbitration Act does not apply. Accordingly, this is a case where the normal order should be made where costs follow the event. I order that the Federation pay the costs of David Syme & Co. Limited and The Herald & Weekly Times Ltd. of the motions for contempt and this motion for costs.

Stay of 21 days.