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

[1981] FCA 227

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
No. 23 of 1981
Contempt of court

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.

CATCHWORDS

Contempt of court - nature of contempt committed out of court - publication and distribution of newspapers containing editorials - pending proceedings - whether editorials constitute contempt.

Future contempt - application for and nature of quia timet injunction.

Federal Court of Australia Act 1976 s.31

HEARING

MELBOURNE

#DATE 3:12:1981

ORDER

THE COURT ORDERS THAT the motions against David Syme & Co. Limited and The Herald and Weekly Times Ltd. be refused.

JUDGE1

The Australian Building Construction Employees' and Builders Labourers' Federation, commonly known as the B.L.F. (hereinafter called "the Federation") is registered as an organization of employees under the Conciliation and Arbitration Act 1904, as amended (hereinafter called "the Act"). Norman Gallagher is the Federal Secretary of the Federation. At about 1 p.m. on Friday, 25 September 1981 Robert Ian Viner as the Commonwealth Minister of State for Industrial Relations, the State of Victoria and the State of Western Australia, as applicants instituted proceedings in the Federal Court of Australia seeking an order pursuant to s.143 of the Act directing the Industrial Registrar to cancel the registration of the Federation. Those proceedings are referred to hereinafter as the deregistration proceedings.

On 1 October 1981, the Federation gave notice that it would move the court for orders punishing David Syme & Co. Ltd. and the Herald and Weekly Times Ltd. for contempt of the Federal Court of Australia and for orders restraining each of them from committing any further contempt of the Federal Court. Details of the orders sought will be referred to later. By the statement of charge given pursuant to 0.40 r.6 of the Rules of Court, the Federation alleged that David Syme & Co. Ltd. had committed a contempt by publishing and distributing in an issue of the "Age" newspaper dated 25 September 1981 an editorial entitled "Industrial Outlaw" and that the Herald and Weekly Times Ltd. had committed a contempt by publishing and distributing in an issue of the "Herald" newspaper dated 25 September 1981 an editorial entitled "Image and Reality" being part of a larger editorial entitled "The Test of Government" and in the issue of the "Herald" dated 29 September 1981 an editorial entitled "A Chance Lost". With the consent of the parties, the two motions were heard together.

The jurisdiction of the Federal Court to hear and determine the motions for contempt arises from s.31 Federal Court of Australia Act 1976, sub-section (1) of which provides:

"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."

Neither David Syme nor the Herald and Weekly Times is a party to the deregistration proceedings, but the Federation, being the sole respondent to those proceedings, is moving the court pursuant to the provisions of Division 2 of 0.40 of the Rules of Court, and in particular pursuant to r.5(1).

By their statement of claim, the applicants to the deregistration proceedings rely upon a number of grounds specified in s.143(1) of the Act, and in particular the grounds specified in paragraphs (c), (h), (j) and (k). The applicants allege a number of objects of the Act described respectively as the goodwill object, the conciliation object, the arbitration object and the observance object. They allege that conduct by the Federation and conduct by a substantial number of its members has prevented or hindered the achievement of each of those objects, s.143(1)(h). They allege further that the Federation and a substantial number of its members have engaged in conduct which has hindered or interfered with the provision of public services by the Commonwealth and the States, s.143(1)(j). For present purposes it is not necessary to refer to the other grounds relied upon by the applicants. It is sufficient to say that the statement of claim is a long and involved document containing forty-nine paragraphs and two appendices, the second of which lists four hundred and eighty-eight different particulars of the allegations contained in the statement of claim. The particulars refer to activities extending over a period from 7 October 1976 to 21 September 1981.

Under s.143(2) of the Act the Federal Court has jurisdiction to hear and determine the deregistration proceedings:

". . . and if, after adjourning the proceedings for such period, if any, as it thinks fit -

(a) it finds that the ground of the application has been established; and

(b) it does not consider that, having regard to the degree of gravity of the matters constituting that ground and the action, if any, that has been taken by or against the organization in relation to those matters, to do so would be unjust,

it shall, subject to this section, by order direct the Registrar to cancel the registration of the organization."

Counsel for David Syme & Co. Ltd. tendered in evidence a large number of newspaper clippings and other documents of a public nature, Counsel for the Herald and Weekly Times Ltd. tendered video tapes and transcriptions of interviews with Mr. Gallagher screened on 17 September 1981 and 18 September 1981 respectively. All these exhibits contained references to the Federation and its activities extending from March 1973 until as late as October 1981. Many of the items referred to in the clippings and documents relate to particulars appended to the statement of claim. An objection to the admissibility of this evidence based on relevance was overruled. The court does not need to determine the truth of the matters referred to in the documents, nor is it desirable that detailed references be made to that material. For present purposes it is sufficient to say that the material illustrates that the Federation has had a long and turbulent history, including deregistration as an organization in the year 1974 and its re-registration in the year 1976. The activities and conduct of the Federation and its members occasioned great public interest and were reported widely. The publicity increased markedly during the year 1981 after the then Minister for Industrial Relations announced in February that the Commonwealth intended to commence proceedings in the Federal Court of Australia seeking the deregistration of the Federation. Since then the progress of the Commonwealth in commencing those proceedings has been marked by procrastination and vacillation. Public reports of the conduct and activities of the Federation continued to receive much prominence in the media. In March the Federation was suspended from the New South Wales Trades and Labour Council because of the effect of its conduct on other organizations, and State unions, particularly with respect to demarcation of work. The Federation engaged in direct action of strikes and bans in an attempt to impose its will on others often in relation to issues which were non-industrial. In July the Federation was re-admitted to the New South Wales Trades and Labour Council but was re-suspended in August. The activities and conduct of the Federation were mentioned on many occasions in both the Federal and Victorian Parliaments. In September the Commonwealth and the State Governments established Royal Commissions to inquire into and report on whether the Federation or any of its officers or members, in the course of or in relation to its affairs, had been or were engaged in activities contrary to a law of the Commonwealth or any illegal, improper or corrupt activities. The Federation threatened direct action against companies supporting the deregistration proceedings. In September the Minister for Industrial Relations announced that the deregistration proceedings would be deferred pending the completion of the Royal Commissions. In Parliament he disclosed that Costain Australia Ltd., a construction company, had been most co-operative in assisting with the deregistration proceedings. This matter received much publicity politically, and, as counsel for the Herald and Weekly Times commented, illustrated the state of the current climate when it was tacitly accepted that the disclosure of the name would result in the Federation taking retaliatory action against Costain. That followed, albeit under the guise of a claim for increased wages and a thirty-five hour week. In addition, similar claims were made by the Federation against some one hundred other companies whose names had been obtained by the Federation as companies assisting the Commonwealth in the preparation of the deregistration proceedings. Later in September the Commonwealth Government announced that it would commence deregistration proceedings and that the Prime Minister was taking a direct interest in the matter. The A.C.T.U. has resolved to support the Federation in the deregistration proceedings.

The relevance of these matters is that they illustrate that the conduct and activities of the Federation have been of intense public interest over a long period and have received wide publicity in the media. This is illustrated by an editorial comment under the heading "A Bloated Arrogance" appearing in the Herald newspaper on the eve of the commencement of the deregistration proceedings. This editorial is not made the subject of the motions for contempt, but counsel for the Federation relies upon it as illustrating the prejudice being caused to the Federation by the newspaper:

"A BLOATED ARROGANCE

A democracy cannot survive a day without restraint on the part of all who have power within it. If individuals and organisations should set out at all times to exploit all possible leverage to their own advantage, chaos would totally destroy our society and its freedom.

It is this elementary awareness of the need for responsibility in a self-governing community that continues to be missing so dangerously from the style of the Builders Labourers' Federation and its federal secretary Norman Gallagher. Again Mr. Gallagher is adopting the standard BLF tactic of going ruthlessly for the jugular, unhesitatingly forcing blatant standover demands on employers, because it is angered by Federal Government moves to seek its deregistration. Rolling black bans on major builders are instantly justified as retribution on those who have aided the Government, however savage and damaging this action may be.

Where is there to be an end to this bloated arrogance? How can the acts of the BLF in standing club in hand over elected state and municipal governments, important industries, and the community at large, be justified for a moment?

The BLF has access to the courts and to the Arbitration Commission, like any other union, in seeking justice and benefits for its members. There is ample space in the legal arena for whatever confrontation it wishes with employers and governments alike. It can oppose the deregistration process with all the facts and arguments available. Instead, the BLF's choice is for hair-trigger, fighting reactions, throwing all responsibility aside and slashing with every weapon it can grasp. Its immediate bullying stance over deregistration is sickeningly typical, and cannot be condemned too much. The self-satisfaction that Mr. Gallagher oozes does him or his union little credit.

In the present situation, Mr. Gallagher has decided to punish those companies who have given information for the process of seeking deregistration - a lawful process that the companies and Government are perfectly entitled to pursue. And to hell with the damage that will cause the community.

Mr. Gallagher and the BLF have got away with far too much for far too long in dictating what we can and what we cannot have. Now they are out to defy Parliament and the whole process of law, and the best interests of others are as nothing to them.

The question stands: 'Who's running the place, the people under an elected democratic government, or Normie Gallagher with his special and unacceptable powers?"

As has been said, the deregistration proceedings were commenced in the Federal Court at about 1 p.m. on Friday, 25 September 1981. The first editorial opinion, the subject of the motions for contempt, was written on 24 September and published in the Age newspaper on the morning of 25 September. The other two editorial opinions, the subject of the motions for contempt, were written and published in the Herald newspapers on Friday, 25 September and on Tuesday, 29 September respectively. Counsel for the Herald and Weekly Times did not dispute that each of the two Herald editorials was published after the commencement of the deregistration proceedings, even though the earlier editions of the Herald of 25 September 1981 were distributed before 1 p.m. It is necessary to set out in full each of these three editorials.

The Age editorial is headed "Industrial Outlaw". Alongside the heading and opening paragraph there appears a caricature of the head of Mr. Gallagher. The caricature was not prepared specifically for the purpose of the editorial but was taken from part of an earlier drawing. The existence of a caricature in an editorial is most uncommon but not unique. Apart from the existence of the caricature, no objection was taken to the form of the caricature itself. The editorial reads:

"INDUSTRIAL OUTLAW

The Federal Government had no choice but to proceed immediately with its long-heralded application to the Federal Court to deregister the Builders' Labourers Federation. In spite of previously accepted legal advice that the deregistration proceedings should be postponed until the Royal Commission into the BLF had completed the task set for it by the Commonwealth and Victorian Governments, the Viner affair has forced its hand. In trying (unconvincingly) to blame his predecessor, Mr. Peacock, for the delay in taking action against the BLF, the Minister for Industrial Relations blundered in disclosing that Costain Australia had been the most co-operative construction firm in helping the Government prepare its case.

This breach of confidentiality provoked the BLF Federal secretary, Mr. Gallagher, into announcing retaliatory industrial action against Costain. This in turn prompted other building companies to issue an ultimatum that if the Government did not take immediate action against the BLF, they would withdraw their evidence. The building industry's concern has been reinforced by yet another apparent blunder by Mr. Viner, from whose office Mr. Gallagher is believed to have obtained a list of more than 100 companies which provided information for the deregistration case. Characteristically, Mr. Gallagher promptly struck back by demanding, with menaces, a $50 a week pay rise and 35-hour week for his members employed by these companies.

It is one thing for the Government to apply for the BLF's expulsion from the roll of registered trade unions. It is quite another for such action to succeed, both in court and in the community. The success of the court hearing will depend on the strength of the Government's case, which has taken an inordinately long time to compile, and more particularly on the readiness of construction companies to substantiate in open court what they have, in some cases reluctantly, told the Government in private. But without pre-judging what the Federal Court will be asked to decide, it is necessary to ask whether deregistration, if granted, would have the desired effect of quelling the BLF's declaration of industrial war.

Mr. Gallagher and his union are notorious for their contemptuous disregard of court orders, Arbitration Commission rulings and the law. They are not afraid of deregistration, which would deny them the protection and privileges of industrial law and the arbitration system. They have fended for themselves in the past and they are confident they can do so successfully again. Nor are they likely to be subdued by the suggestion that if they harass companies during the proceedings, they could be prosecuted under the Commonwealth Crimes Act. Either they could afford to wait, or they might calculate that a resort to the Crimes Act would rally the trade union movement to their support.

The fate of the BLF is in the hands not so much of the Government, or the building industry, or the Federal Court, as of the rest of the trade union movement. Much depends on whether the ACTU recognises the reality that Norm Gallagher and his bully boys are outlaws whose activities have not only challenged legitimate authority and spurned community well-being, but jeopardised the interests of workers and broken the bonds of brotherhood. Such has been the BLF's contempt for the rights of other unionists that it was recently expelled from the NSW Trades and Labor Council. Last month Mr. Gallagher declared that the BLF would take no notice of a Victorian Trades Hall resolution on picketing in demarcation disputes.

Even the BLF's ruthless campaigns for higher pay and better conditions for its own members is proving counter-productive. Its continual disruption of important building projects in Melbourne has induced many companies to defer plans or to invest elsewhere, with a consequent loss of jobs in Victoria. And BLF disruption of public works, such as the Loy Yang power station, has increased the cost of living and worsened the quality of life for all workers. It is time all Australians, and Victorians in particular, saw Mr. Gallagher for what he is: not a union stalwart, not a folk hero, not the darling of single-minded conservationists, but an egotistical enemy of this nation, of this State, and of ordinary people."

In addition, the paragraph commencing "The fate of the BLF . . ." was set out in a block on page 1 of the Age with the comment "Editorial: Page 13" alongside a news report headed "Fraser assures builders he will fight BLF". In addition, on the editorial page there appeared a cartoon of a grotesque figure depicting the Minister for Industrial Relations sitting precariously on an unstable brick wall labelled "BLF" which is about to be demolished by an equally grotesque figure depicting Mr. Gallagher wielding a large sledge-hammer. The cartoon is labelled "Deregistration".

The Herald editorial of 25 September, the subject of the notice of motion, is headed "Image and Reality". In fact it constitutes a sub-heading to a longer editorial headed "The Test of Government". The whole editorial is set out:

"THE TEST OF GOVERNMENT

The Fraser leadership and the Fraser Government are said to be in trouble, and that is part of their trouble; in the fragile and often frenzied atmosphere of Canberra politics the image often overcomes the reality.

Certainly, the present condition of the Government is poor; they are blundering and, to put it most kindly, accident-prone.

It is hard to believe, for instance, that Ian Viner should long survive in his present portfolio. He has failed enough and should soon be moved away to a less dangerous place.

Overall, Malcolm Fraser's Government too often appears to be too political, too petty, too short-term.

Andrew Peacock is right to condemn it for this failure to govern well. It is, of course, easy for him, as it is for all those without power, to advise those with it how to behave.

Mr. Peacock is said by some to be gaining support for a challenge to Mr. Fraser's leadership. It is hard to see why; Mr. Peacock looks fine on TV, but has he ever done anything more than present an image? Has he proved he has the substance to do the job better?

It may be that his well-known attractive qualities could so develop that he might one day be the right man at the right time. But being a significant Prime Minister requires the ability - the gut strength - to make the tough decision against tough opposition. It is easy to advise from outside or to decide when the alternatives are only between right and wrong; harder it is to judge when there is no easy, right answer, only the heavy demand that difficult judgments must be made between unsatisfactory options under strong public and party pressures.

The personality opinion polls show all sorts of people popular from time to time; so often those most popular are those whose public function is to talk and not to have to act in office.

IMAGE AND REALITY

Bob Hawke, for instance, has much in common with Mr. Peacock (apart from their ambitions, that is). The image is there, but neither have yet proved their character under parliamentary fire; they have not been tested by the reality of life in high public office.

To govern it is necessary to be more than visually acceptable on prime television time.

But the Government's danger is that those with reason not to love Mr. Fraser may be swayed by the polls and their own fears. If blunders continue to come from Federal Cabinet, the nervous occupiers of marginal seats may seek salvation from Mr. Peacock.

Mr. Hayden appears safe at present; Mr. Hawke lacks the trigger to fire a pre-election shot at the leadership. But Mr. Fraser must soon re-assert the ability that he has already shown to supply steady, stable authority.

In that, his assumption of control over the action against the Builders Laborers' Federation will not be minor issue. It will be a test of his and the Government's capacity to control events.

The test of success against the BLF will not be a matter of legal judgment and argument; the Federal (and State) governments will be judged successful only if the BLF's ruthless control of our construction capacity is removed. That can be done only by isolating them from the trade union movement and by taking away their monopoly control of the nation's building sites.

The real test of successful government is not only the winning of votes in parliament and judgments in court . . . it is also getting done those things that matter in the public places of Australia."

The Herald editorial of 29 September is headed "A Chance Lost" and is set out:

"A CHANCE LOST

The ACTU executive lost a chance yesterday to show it was serious about establishing and maintaining industrial peace when it came out in support of the maverick Builders Laborers' Federation in its fight against deregistration and other unions.

Obviously, the BLF had the numbers to win a compromise deal under which it 'agreed' to follow ACTU rules in the settlement of demarcation disputes.

The ACTU moves for meetings of all building unions involved in the widespread demarcation disputes and also for meetings aimed at improving industrial relations in the building industry are sensible conciliatory gestures. But the question remains: How can the ACTU manage to keep the BLF in line? The union and its federal secretary, Mr. Norm Gallagher, have shown clearly in the past that they want to dominate the building industry and to hell with everybody else.

One good aspect of the agreement - if it works - is that it could put control of the campaign for a 35-hour week in the building industry where it belongs - with the ACTU - instead of allowing this issue to be a cudgel for the BLF to use in its vendetta with employers who co-operated with the Federal Government in the deregistration issue."

Before turning to consider whether the publication of any one of these editorials constitutes a contempt of court, reference should be made to one other matter. Much publicity had been given in the media to submissions made and evidence given at the Royal Commissions being conducted by John Spence Winneke, Q.C. On 27 October 1981 a full court of the Federal Court, on the application of the Federation, made an order restraining Mr. Winneke from conducting the Royal Commissions in public. Since the date of that order neither David Syme nor the Herald and Weekly Times has published reports or made comments upon submissions made or evidence given at the Royal Commissions.

The final orders sought by the Federation in the form as amended following the decision of the full court are, except with respect to the name of the publisher of the relevant newspaper, identical. The order sought in the motion against the publisher of the Age newspaper is set out:

"1. David Syme & Co. Limited be punished for contempt in connection with the proceeding herein.

2. David Syme & Co. Limited whether by its servants, agents or howsoever otherwise be restrained from publishing or printing or causing to be published or printed any statement report or comment -

(a) which prejudges any of the matters in issue or deals with evidence relating to any of the matters in issue in the proceeding herein;

(b) which disparages or harasses or creates prejudice against the respondent The Australian Building Construction Employees' and Builders Labourers' Federation or any officer or member of the said respondent in relation to or arising out of -

(i) the respondent's position as a respondent in the proceeding;

(ii) the conduct of any officer of the respondent in relation to or arising out of the respondent's position as a respondent in the proceeding herein;

(iii) the matters in issue or the evidence relating to the matters in issue in the proceeding herein;

(c) relating to or concerning any submissions made or evidence given to John Spence Winneke QC in the course of the conduct in private of the inquiry the subject of Letters Patent dated the 20th August 1981 executed by His Excellency Sir Zelman Cowan and Letters Patent dated 20th August 1981 executed by His Excellency the Honourable Sir Henry Winneke;"

Having regard to the form of the second order sought, it should be noted that this was the substantial order sought by the Federation against each of the publishers. The order is in the nature of a quia timet injunction based upon an imminent contempt of court or, put in another way, based upon a possible contempt of court which the Federation fears will be committed. Before an order of that kind will be made, the Federation must prove that there is a real probability that activities of the publishers of the newspapers are imminent which, if carried out, will constitute a contempt of court, cf. Grasso v. Love (1980) V.R. 163. As a first step in establishing that real probability, the Federation contended that the three editorials each in fact constituted a contempt of court. Accordingly, consideration is now directed to the issue of whether the three editorials, or any one of them, constitute a contempt.

The motions by the Federation relate to that type of contempt committed outside court. The nature of that type of contempt is summarized in Halsbury's Laws of England (4th Ed.) V.9, p.6, para. 7 as follows:

"In general terms, words spoken or otherwise published, or acts done, outside court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempts of court."

The paragraph then lists common examples of that type of contempt, some of which are now set out:

"(1) Publications which are intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings;

(2) Publications which pre-judge issues in pending proceedings."

The word "pending" is used in the sense of legal proceedings which have in fact commenced and is contrasted with the word "imminent" to describe legal proceedings which have not yet been commenced.

In his reasons for judgment given on 27 October 1981 in the full court judgment already referred to, Deane J., in elaboration of the nature of a contempt of this type, said:

"There is room for debate on matters of emphasis, scope and degree, and on questions of principle such as the precise effect of intent and the extent to which competing public interests and private rights or needs may be relevant to the determination of whether there has been an actual, albeit it may be a technical, contempt of court. Be this as it may, it appears to me that it is, at least insofar as this Court is concerned, established that statements made or actions taken will have a tendency to interfere with the due administration of justice if they have a tendency: (i) to interfere with the fair and proper conduct of the trial of a particular pending cause by influencing the court of prospective witnesses in respect of the matter generally or in respect of particular issues or questions involved in it; (ii) to disparage or vilify a party to litigation or a witness in a party's cause because he is a litigant or witness or because of the litigation or allegations made to it; or (iii) to prejudice or bias the public mind in favour of one side as against the other side and thereby substitute pre-judgment or, in some cases, pre-trial by the media, for determination by the courts of the land."

The authorities abound with statements concerning the nature of this type of contempt. The existence of the jurisdiction and power to punish for contempt of court is based upon public policy, namely the policy to ensure the fair administration of justice. To enable this to be enforced, the courts have a summary jurisdiction which is wide in nature to punish a person for contempt by procedures different from those normally applicable in cases where a person is charged and tried for a criminal offence. In all cases, before a person can be punished for a contempt, the contempt must be established. Sometimes the existence of a contempt is referred to as an actual or technical contempt. In some of the authorities there are suggestions that it is the existence of a technical contempt which creates the power in the court to punish the person who has committed that contempt. In my opinion, the true position is stated by Fullagar J. in Davis v. Baillie (1946) V.L.R. 486 at pp.493-4 as follows:

"The nature or tendency of the matter published is, I think, the essential characteristic of contempts of this kind, and, since a person may be presumed to intend the natural and probable consequences of his acts, a prima facie case is, I think, made out if the tendency is established. But I agree with Mr. Mulvany that the ultimate test to be applied is not a purely objective test. The presumed or proved state of mind of the person responsible for the publication is, I think, relevant to the determination of liability and not merely to the assessment of punishment. I deduce this from a number of interesting cases to which Mr. Mulvany referred me, viz., Hunt v. Clarke ((1889) 58 L.J. (Q.B.) 490); R. v. White; Ex parte Watson ((1925) St.R.Qd. 85); In re Thomas ((1928) S.A.S.R. 210); In re Labouchere ((1901) 18 T.L.R. 208); Phillips v. Hess ((1902) 18 T.L.R. 400); R. v. Editor of Daily Mail; Ex parte Factor ((1928) 44 T.L.R. 303) R. v. Dolan ((1907) 2 I.R. 260); Ex parte Bread Manufacturers Ltd.; Re Truth & Sportsman Ltd. ((1937) 37 S.R. (N.S.W.) 242), and A.-G. v. Mathison ((1942) N.Z.L.R. 302). All these cases, and some others at which I have looked, have to be read with care and in the light of all the particular circumstances. Sometimes the decision really turns on the view of the Court that the matter complained of has no real and substantial tendency to unfairness or prejudice. In some civil cases I think that the Court has been far from satisfied that the pending proceedings, in connection with which the charge was made, had been commenced in good faith by the person complaining. In others again the Court has, I think, taken the view that the tendency to prejudice is there, but that it is only slight, and that not merely ought it not to punish but it ought not to hold guilty of contempt a person who was innocent of any wrongful intent and innocent of gross negligence. The truth is, I think, that the jurisdiction is essentially discretionary, and that, because it is discretionary, there is often felt to be no real necessity for considering as separate and distinct questions the question of guilt and the question of punishment. The proceeding is criminal in character: In re Thompson ((1893) 19 V.L.R. 286; 15 A.L.T. 47); R. v. Fletcher; Ex parte Kisch ((1935) 52 C.L.R. 248); but the logical distinction between 'conviction' and 'sentence' has not the significance which it has in an ordinary criminal proceeding. I was much impressed by Mr. Nimmo's proposition that I had to deal with two questions: (1) Was there a contempt? and (2) Was there a punishable contempt? Of course, if there is a clear contempt, the Court must consider whether it should punish, and, if it should punish, how it should punish. But often, I think, the Court does not ask itself two separate questions, but simply and quite properly, asks itself whether it ought to exercise its jurisdiction. And, as in all cases of discretion, the matters which should be taken into consideration cannot be exhaustively enumerated and defined a priori."

Although it is not possible to exhaustively enumerate all matters which must be taken into consideration in considering whether a contempt has been committed or not, it is useful to set out a number of extracts from judgments relating to the nature of the contempt of the kind being considered. In John Fairfax & Sons Pty. Ltd. v. McRae (1955) 93 C.L.R. 351 Dixon C.J., Fullagar J., Kitto J. and Taylor J. in a joint judgment said at pp.370-1:

"We have expressed our opinion that the scope of the summary jurisdiction to punish for contempt is wide, and extends to the punishment of contempts of any court, and we have referred to its history. Its practical justification lies in the fact that in general 'the undoubted possible recourse to indictment or criminal information is too dilatory and too inconvenient to afford any satisfactory remedy' (per Wills J. in R. v. Davies ((1906) 1 K.B., at p.41), citing R. v. Almon ((1765) Wilm., at p.256 (97 E.R. at p.100))). Because it is founded on the elementary necessities of justice, there must be no hesitation to exercise it, even to the point of great severity, whenever any act is done which is really calculated to embarrass the normal administration of justice. We are in complete agreement with Owen J. when he says, in effect, that it would be a disgraceful thing if 'trial by newspaper' were allowed to supersede, or to influence, the ordinary process of the courts ((1954) 54 S.R. (N.S.W.), at p.177; 71 W.N., at p.122). Perhaps there has been in the past too little vigilance on the part of the Crown for the vindication of this principle. On the other hand, because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case. A penalty will not be imposed in its exercise 'unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference' - per Cotton L.J. in Hunt v. Clarke ((1889) 58 L.J. (Q.B.) 490, at p.493), quoted by Lord Russell C.J. in Reg. v. Payne ((1896) 1 Q.B. 577, at p.581). Sometimes the court may think that, technically speaking, a contempt has been committed, but that, because the tendency to embarrass is slight, or because of special circumstances, it ought to refuse to exercise its summary jurisdiction. There may be occasions when it will be material to remember that there may be attempts to abuse the jurisdiction. There have been occasions where summary proceedings for contempt have been commenced, or threatened, not with the real object of ensuring the impartial administration of justice, but solely for the purpose of stopping public comment on, or even public inquiry into, a matter of public importance. A court possessing the summary jurisdiction will not allow itself to be made the instrument for effecting such a purpose."

At p.371 they said:

"The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to circumstances."

Again, at pp.371-2, they said:

"In the generality of cases of this class, where a penalty has been imposed, pending legal proceedings have provided either the actual subject matter or the immediate occasion of the publication. In Packer v. Peacock ((1912) 13 C.L.R. 577), for example, the sole occasion of the publication was a pending charge of murder against Peacock, and the only interest of the matter published lay in its bearing on his guilt or innocence. In Davis v. Baillie ((1946) V.L.R. 486) there was a direct suggestion of the guilt of Davis, who had absconded from bail, on charges of breaking and entering, and his prior convictions were stated. On the other hand in Ex parte Bread Manufacturers Ltd.; Re Truth & Sportsman Ltd. ((1937) 37 S.R. (N.S.W.) 242; 54 W.N. 98) where the article complained of formed part of a series of articles which began before the relevant litigation was commenced, and which dealt generally with a matter of public interest, the Full Court of New South Wales refused to punish as for contempt, Jordan C.J. saying that any tendency which the articles might have to influence the pending litigation was 'purely fortuitous' ((1937) 37 S.R. (N.S.W.), at p.251; 54 W.N., at p.100): cf. Phillips v. Hess ((1902) 18 T.L.R. 400). In the present case, the police charges against Rigby did not provide the occasion of the publication, and had nothing to do with the purpose of the publication. If what was published did have any bearing on those charges, that bearing was, to use Sir Frederick Jordan's word, fortuitous.

These considerations are perhaps enough of themselves to support the conclusion that the case was not one for the exercise of the summary jurisdiction in respect of contempts. But indeed, even if the matter published is scanned from a purely objective point of view, we do not think that it is actually possible to find in it that real and definite tendency to prejudice or embarrass pending proceedings, which is of the essence of a contempt of the kind alleged. The matter in question must be read as a whole."

In Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 S.R.(N.S.W.) 242, Jordan C.J. said at pp.249-50:

"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter: In re Labouchere; Kensit v. Evening News Ltd. (18 T.L.R. 208); Phillips v. Hess (18 T.L.R. 400); R. v. Daily Mail; Ex parte Factor (44 T.L.R. 303); Gaskell & Chambers Ltd. v. Hudson, Dodsworth & Co. ((1936) 2 K.B. 595 at p.602). If, however, under colour of discussing, or continuing to discuss, a matter of public interest statements are published the real purpose of which is to prejudice a party to litigation, the contempt is none the less serious that an attempt has been made to cloak it : cf. In re Cornish; Staff v. Gill (9 T.L.R. 196); Higgins v. Richards (28 T.L.R. 202)."

In James v. Robinson (1963) 109 C.L.R. 593 the High Court held that conduct antecedent to the commencement of legal proceedings cannot constitute a contempt of court of the type presently under consideration. In the present case, no difficulty arises concerning the time at which the deregistration proceedings commenced, namely about 1 p.m. on 25 September 1981. Conduct by David Syme in publishing the editorial in the Age newspaper on the morning of 25 September 1981 cannot, therefore, constitute a contempt of court, even if the editorial otherwise did constitute conduct which amounted to a contempt. Counsel for the Federation conceded that the High Court decision bound this court, but formally submitted that the High Court decision was wrong. In any event he argued that there was a publication of the editorial after the deregistration proceedings had commenced and that that publication was sufficient to distinguish the decision in James v. Robinson.

The Age newspaper has printed in it the following:

"Printed and published by WILLIAM GRAHAM BLAND of 27 Beach Road Beaumaris for David Syme & Co. Limited, at 250 Spencer St. Melbourne. Registered by Australia Post - publication No. VBF1305 and registered as a newspaper at the British Post Office."

See also the Printers and Newspapers Act 1958 (Vic.). The editorial was written on 24 September. It was written having in mind the importance to the public of the matters giving rise to its content and to the long and unsatisfactory history of those matters. The newspaper was printed on the night of 24-25 September. The early editions of that copy of the newspaper were distributed from 250 Spencer Street, Melbourne, during the early hours of the morning of 25 September. Copies were available for purchase by the public in all the capital cities of the States and in Canberra and in most country centres before noon on that day. Some copies were not distributed in the suburbs of Perth or in the outlying areas of Western Australia, Queensland, Tasmania and the Northern Territory until after 1 p.m. on that day. Copies were purchased at 250 Spencer Street by an officer of the Federation some days after 25 September. An inference can be drawn that copies of the newspaper were available and were in fact purchased by members of the public in the capital cities of the States and at other centres after 1 p.m. on that day. Counsel for the Federation contended that each sale of the newspaper to a member of the public constitutes a separate publication of the editorial and thus constitutes a contempt.

That contention is rejected. In my opinion, the Age newspaper was published, for the purposes of this case, when and where it was offered to the public for the first time, namely at 250 Spencer Street, Melbourne. This was at a time well before 1 p.m. on 25 September. For the purposes of contempt, and on the facts of this case, individual sales to the public after 1 p.m. on that day do not constitute a republiction. Different considerations might apply if, subsequently to the first publication of the Age on that day, the editorial was republished by means of a redistribution to the public generally from 250 Spencer Street. The purchase of copies of the Age newspaper of 25 September by the officer of the Federation some days thereafter does not, in my opinion, constitute such a republication.

Accordingly, on the authority of James v. Robinson, supra, I find that the editorial published in the Age newspaper of 25 September 1981 does not constitute a contempt of court.

The editorial comments in the two issues of the Herald can be considered together. Each editorial must be read as a whole and it is not permissible to treat the editorial as if it were a statutory document in which a construction must be placed upon each phrase for the purpose of determining whether that phrase constitutes a contempt of court or not. The deregistration proceedings were not the immediate occasion for the publication of either editorial. The first editorial was in fact written before those proceedings were commenced. It was directed to political issues, to personalities within political parties, to the need for leadership in government, to the question of power and control, ruthless or otherwise, and to the necessity to see the reality and not to be misled by the image. Reference to the Federation and its past conduct is "purely fortuitous" and the point is made that the success of legal proceedings against the Federation will not of itself resolve the problem as perceived by the writer of the editorial. In my opinion that editorial does not have any tendency to interfere with or obstruct or embarrass the due conduct of the deregistration proceedings or the fair administration of justice. The editorial has no tendency to pre-judge the deregistration proceedings or to disparage or vilify the Federation or to pre-judge the public mind against the Federation or to affect potential witnesses. The commencement of the deregistration proceedings cannot prevent the public discussion of a matter which may fairly be regarded as one of public interest. There was no suggestion that the editorial was written for the real purpose of causing prejudice to the Federation. The second paragraph from the extract from the judgment of Jordan C.J. in the Bread Manufacturers case, supra, is most apposite to the present case. This comment is not directed to the conflicting strands of public policy referred to hereafter, but merely illustrates the necessity to consider the whole of the editorial in the circumstances in which it was published. In any event, the editorials are so near to the prior publicity and so far from the date of hearing of the deregistration proceedings that it is not likely that they would interfere with the fair administration of justice.

I come to the same conclusion with respect to the editorial in the copy of the Herald of 29 September. The subject matter of that editorial was occasioned by the decision taken by the A.C.T.U. to support the Federation in the deregistration proceedings. The placing of the word "agreed" in inverted commas was said to disparage or vilify the Federation, namely that its word should not be accepted. I do not accept that contention. In some respects the second editorial is a continuation of the editorial of 25 September in relation to power and control. The point is made that the A.C.T.U. Executive will have difficulty in resolving the demarcation disputes which had led to so much industrial trouble, particularly within the Trades and Labour Council in New South Wales. The wording of the editorial is strong, but I am not persuaded that the editorial has any tendency to interfere with, obstruct or embarrass the due conduct of the deregistration proceedings and I repeat what I said earlier.

In the result, I find that neither of the two editorials in the Herald newspapers constitutes a contempt of court.

In view of the findings made it is not necessary for the court to give further consideration to the untangling of the two threads of public policy which at times may appear to be in conflict, namely the fair administration of justice on the one hand and the freedom of speech, particularly in its application to the freedom of the press or media, on the other. This problem was discussed in detail in A.-G. v. Times Newspapers Ltd. 1974 A.C. 273. In that case, Lord Reid, after referring to the absence of any recent authoritative review in England of the relevant legal principles, possibly, as he said, because the circumstances of cases which arise in practice are generally not such as to require any detailed analysis of the law, and before entering upon such a detailed analysis said at p.294:

"The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice."

The facts of the present case are not such as to require a detailed analysis of the law on this subject, but because of the interesting and helpful submissions made by counsel on this aspect of the matter I append to these reasons a list of authorities cited during the course of argument or referred to in these reasons for judgment.

During the course of submissions, counsel for the Federation conceded that if the editorials do not constitute contempts, it would be difficult to contend that orders in the nature of injunctions should be made. I have referred already to the onus cast upon a party seeking a quia timet injunction. The facts of this case do not establish a real probability that any future conduct by David Syme or by the Herald and Weekly Times is imminent and which, if engaged upon, will constitute a contempt of court in relation to the deregistration proceedings. In this regard it is noted that in A.-G. v. Times Newspapers Ltd., supra, the material which was alleged constituted a contempt if published, was before the courts at the time of the application for the injunctions and before it had been published in the press. In the present case no specific material is placed before the court. What is sought is an injunction expressed in an extremely wide form. I make no comment on whether orders of that kind should be made in that form in matters similar to the facts of this case where no specific material is under consideration. In this regard reference is made to what Lord Denning M.R. said in Schering Chemicals Ltd. v. Falkman Ltd. (1981) 2 W.L.R. 848 at pp.859-60:

"(iv) Prior restraint

The freedom of the press is extolled as one of the great bulwarks of liberty. It is entrenched in the constitutions of the world. But it is often misunderstood. I will first say what it does not mean. It does not mean that the press is free to ruin a reputation or to break a confidence, or to pollute the course of justice or to do anything that is unlawful. I will next say what it does mean. It means that there is to be no censorship. No restraint should be placed on the press as to what they should publish. Not by a licensing system. Nor by executive direction. Nor by court injunction. It means that the press is to be free from what Blackstone calls 'previous restraint' or what our friends in the United States - co-heirs with us of Blackstone - call 'prior restraint'. The press is not to be restrained in advance from publishing whatever it thinks right to publish. It can publish whatever it chooses to publish. But it does so at its own risk. It can 'publish and be damned.' Afterwards - after the publication - if the press has done anything unlawful - it can be dealt with by the courts. If it should offend - by interfering with the course of justice - it can be punished in proceedings for contempt of court. If it should damage the reputation of innocent people, by telling untruths or making unfair comment, it may be made liable in damages. But always afterwards. Never beforehand. Never by previous restraint."

It should be noted that later in his reasons Lord Denning refers to instances where injunctions will be granted to prevent the publication of material.

For present purposes it is sufficient to say that the Federation has not made out a case to support the granting of the injunctions sought.

Accordingly, the motions are refused.

In proceedings of this kind, the Federation normally would be ordered to pay the costs of David Syme and the Herald and Weekly Times. The deregistration proceedings constitute a proceeding in a matter arising under the Conciliation and Arbitration Act. Under s.197A of that Act a party to that proceeding 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. Prima facie, neither David Syme nor the Herald and Weekly Times is a party to the deregistration proceedings. Questions might arise, however, where they are entitled to an order that their costs be paid by the Federation. Accordingly, leave is granted to David Syme Ltd. and the Herald and Weekly Times Ltd. to move for an order for costs.