Zaknich v McDonald - [2000] WASC 151

JURISDCTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION :ZAKNICH -v- MCDONALD [2000] WASC 151

CORAM: SCOTT J

HEARD: 15, 16 & 17 MAY 2000

DELIVERED : 15 JUNE 2000

FILE NO/S: CIV 2263 of 1999

BETWEEN: JAMES ANTHONY ZAKNICH
Plaintiff
AND
JOSEPH MCDONALD
Defendant

Catchwords:

Contempt, attachment and sequestration - Contempt of court - Contempt - What constitutes - District Court action resolved by undertaking of defendant - Determination of facts - Undertaking said to be imprecise and ambiguous - Contempt of court to be determined according to common law principles - Plaintiff to prove the case beyond reasonable doubt - Defendant in breach of undertaking - Evidence of plaintiff preferred - Expression used in undertakings commonly understood

Industrial law - Commonwealth - Section 285C Workplace Relations Act 1996 (Cth) - Permit to enter premises - Proper exercise of statutory right to enter premises - Union officials attending meeting not named in the notice to attend premises

Penalty - Undertaking given to a superior court a matter of importance - Administration of justice dependant upon undertakings being honoured - Defendant with no prior record for similar conduct

Legislation:

Workplace Relations Act 1996 (Cth), s 285C

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr I D Temby QC & Ms S B Nash
Defendant: Mr R W Richardson & Mr S D A Bird

Solicitors:

Plaintiff: Australian Government Solicitor
Defendant: Dwyer Durack

Case(s) referred to in judgment(s):

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Commissioner of Water Resources v Federated Engine Drivers and Fireman's Association of Australasia Queensland Branch and Ors [1988] 2 Qd R 385
Director of Public Prosecutions v Morgan [1976] AC 182
McNair Anderson & Associates v Hinch [1985] VR 309
Proudman v Dayman (1941) 67 CLR 536
R & I Bank of Western Australia v Anchorage Investments Pty Ltd (1992) 10 WAR 59
R v Pearce (1992) 7 WAR 395
Re The Royal Commission into the Use of Executive Power; The Queen v Parry, Saxon & Smith, unreported; SCt of WA; Library No 970196; 1 May 1997

Case(s) also cited:

Amieu v Mudginberri (1986) 161 CLR 98
Bennison ex parte Fisher SM (1995) 14 WAR 318
Bryant v Keith Harris (1980) 33 ALR 437
Churchman v Joint Shop Stewards Committee of the Workers of the Port of London (1972) 1 WLR 1094
Clifford v Middleton [1974] VR 737
Concrete Constructions Pty Ltd v PGEU (1987) 72 ALR 415
Consolidated Press v McRae (1955) 93 CLR 325
Grassby v The Queen (1989) 168 CLR 1
Howitt v TGWU (1972) ICR 1
Hudson v Hudson [1966] 1 Ch 209
Iberian Trust Ltd v Founders Trust & Investments Co Ltd [1932] 2 QB 87
In re Bramblevale [1970] Ch 128
In re Perry ex parte Griffith & Anor (1931) 34 WALR 66
Mullins v Howell [1879] 11 Ch D 763
North West Territories Public Service Association v Commissioner of the North West Territories (1980) 107 DLR 3rd 458
Re Heritage Innes Aust Pty Ltd (in liq); Swan Brewery Co Pty Ltd v Newman, unreported; SCt of WA (Murray J); Library No 980490; 2 September 1998
Re M (Miners) Access: Contempt: Committal (1991) 1 FLR
Redwing v Redwing Forest Products Ltd (1947) 177 LT 387
Spindler v Balog (1959) 76 WN (NSW) 391
Trade Practices Commission v C G Smith Pty Ltd (1978) 30 FLR 368
Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 69 ALR 534
Witham v Hollaway (1995) 183 CLR 525

SCOTT J: By an originating summons dated 15 November 1999, the plaintiff, an inspector under the Workplace Relations Act 1996 (Cth) ("the Act"), seeks orders that the defendant be found guilty of contempt of court. Particulars of the alleged contempt are:
"1The Defendant be found guilty of contempt of court by his conduct in failing to comply with an undertaking to the District Court of Western Australia given on 7 December 1998 that he would not at any time thereafter:
(a)(by paragraph (b) of the undertaking) enter the East Parade premises without giving Transfield Pty Ltd and Thiess Contractors Pty Ltd at least 24 hours notice of his intention to do so, such notice to include the date and approximate time of his intended visit and where practicable to be in writing, unless otherwise agreed with the said Transfield and/or Thiess; and
(b)(by paragraph (c) of the undertaking) hold discussions on the East Parade premises with employees pursuant to section 285C(1) of the Act other than during the employees' mealtime or other breaks -
full particulars of which conduct is set out in the particulars of charge annexed hereto and marked 'A'.
2The Defendant be punished for his contempt of court by an order for such penalty as this Honourable Court deems fit.
3The Defendant pay the Plaintiff's costs of this application."
Particulars of the contempt shown as annexure "A" to the originating summons are:
"1On 20 July 1999 at East Perth, the respondent entered the East Parade premises as defined in the Statement of Claim in District Court proceedings no. 3855 of 1998 (Zaknich v Simpson and McDonald) without giving Transfield Pty Limited and Thiess Contractors Pty Limited at least twenty-four hours' notice of his intention to do so, contrary to paragraph (b) of the undertaking given by the respondent to the District Court of Western Australia in such proceedings as recorded in that Court's order dated 7 December 1998.
2On 20 July 1999 at East Perth, the respondent held discussions on the said East Parade premises with employees pursuant to s 285(C)(1) of the Workplace Relations Act 1996 between about 7:00 a.m. and about 7:20 a.m., which was during normal working hours and not during the employees' meal times or any other break, contrary to paragraph (c) of the undertaking given by the respondent to the District Court of Western Australia as recorded in its order dated 7 December 1998 in proceedings no. 3855 of 1998."
To understand how this matter arises, it is necessary to refer to earlier proceedings in the District Court in action No 3855 of 1998. In that action, the present plaintiff brought an action against the present defendant and another alleging that the defendant hindered and/or obstructed Transfield Pty Ltd ("Transfield") and Thiess Contractors Pty Ltd ("Thiess") from going about their lawful business. It was said that those interruptions had arisen out of industrial disputes.
In that action the plaintiff sought injunctions and penalties pursuant to s 285F of the Act. It is important to note that in those proceedings, the indorsement of claim, at the commencement contained two definitions:
"(a)'The East Parade Premises' means the East Parade site of the Graham Farmer Freeway Construction Project being undertaken by Transfield/Thiess Joint Venture being the area of land located in East Perth bounded by East Parade, Summers Street, the fence along the western and part of the southern boundaries of adjoining Western Power premises and then running parallel to the Swan River until the site compound and then running east to the Swan River, the Swan River and the Perth Armadale railway line;
(b)'The Burswood Premises' means the Burswood site of the Graham Farmer Freeway Construction Project being undertaken by Transfield/Thiess Joint Venture being the area of land comprising the section of the Graham Farmer Freeway under construction between the Swan River and Great Eastern Highway and adjoining land up to the construction fence line."
For the purposes of these reasons, it is only the definition of "the East Parade Premises" that is of relevance.
The action in the District Court was ultimately settled by the defendant giving an undertaking in a document dated 7 December 1998 (exhibit "K" to the affidavit of James Anthony Zaknich sworn 29 September 1999).
That undertaking has par (a) to par (g) but relevant to these proceedings are par (b) and par (c). The undertaking provides:
"I, JOSEPH McDONALD, of C/- 27 Moore Street, East Perth, the Second Defendant herein undertake to the Court that I will not do at any time hereafter (whether by myself or my servants or agents or any of them or otherwise howsoever) the following acts or any of them, that is to say:
(b)enter the East Parade premises or the Burswood premises without giving Transfield Pty Ltd and Thiess Contractors Pty Ltd at least 24 hours notice of my intention to do so, such notice to include the date and the approximate time of my intended visit and where practicable to be in writing, unless otherwise agreed with the said Transfield and/or Thiess. I will use my best endeavours to visit as close to that approximate time as possible;
(c)hold discussions on the East Parade premises or the Burswood premises [sic] with employees pursuant to s.285(C)(1) of the Act other than during the employees mealtime or other breaks;"
The District Court action was ultimately resolved by an order of French DCJ on 7 December 1998 which embodied the terms of the undertaking and ordered:
"1The application for interlocutory relief made by the plaintiff by summons dated 8 October 1998 be and is hereby dismissed.
2The action be and is hereby dismissed.
3Each party pay their own costs of the action including any reserved costs or costs ordered."
The defendant in the action is Joseph McDonald ("McDonald"), who is employed as the Assistant Secretary in the Western Australian Division Branch of the Construction, Forestry, Mining and Energy Union Construction and General Division ("CFMEU").
The various causes of action between the plaintiff and the defendant arose out of the conduct of the CFMEU in relation to the construction of the Graham Farmer Freeway and in particular the roads and bridges being constructed by Transfield and Thiess pursuant to a joint venture ("the joint venture").
The defendant, as an officer of the CFMEU, was granted a permit under Division 11A, Part IX of the Act to enable him to exercise the powers and functions of a permit holder. The permit was valid for a period of three years from 12 May 1998.
Pursuant to the permit, the defendant and other officers of the CFMEU, from time to time, visited the workplace upon which the joint venture was constructing the bridges and roads of the Graham Farmer Freeway. Those visits were for the purposes of conducting the business of that Union. It was the conduct of the defendant in respect of industrial matters concerning that project that gave rise to the District Court action which was ultimately settled by the undertaking, portions of which are set out earlier in these reasons and which were embodied in the order of the District Court.
As can be seen from the terms of the originating summons set out earlier in these reasons, the contempts alleged against the defendant arise out of the events of 20 July 1999 which the plaintiff contends were in breach of the undertakings which the defendant had given to the District Court.
In general terms it is appropriate to say that the evidence called on behalf of the plaintiff was in my view more acceptable and more credible than that called for the defendant. Whilst it is fair to say that the witnesses called for the plaintiff for the most part were employees of Transfield/Thiess Joint Venture, in my view their evidence was preferable to the witnesses called for the defendant. In particular, the evidence of John Anthony Chittick, ("Chittick"), I found impressive, not only because of his evidence and answers in cross-examination, but also because following the meeting of 20 July 1999, around which this action revolves, he made two lots of notes shortly thereafter, which he used as the basis of the evidence which he ultimately gave to the court. In my opinion, both Chittick and a further witness for the plaintiff, Anthony Gerard Cariss ("Cariss") were witnesses whose evidence, generally speaking, I accepted.
Evidence was given by the witnesses in the form of affidavits (in relation to which rulings as to admissibility were made) and apart from some supplementation, the witnesses were cross-examined by the opposing party's counsel.
In his affidavit of 29 September 1999, Chittick, who was a Bridge Superintendent for the Joint Venture deposed as to the events on and surrounding 20 July 1999. Chittick was aware, on or about 15 July 1999 of a notice sent to the site premises of the Joint Venture. The notice was sent by facsimile and purported to emanate from Tony Kelly ("Kelly"), an organiser of the CFMEU. The notice provided:
"Dear Sir
Please be advised that we intend to exercise our right of entry, pursuant to section 285B and section 285C of the Work Place Relations Act by visiting your abovenamed site.
The purpose will be to hold a site meeting with all CFMEU membership.
The meeting will be held at 6:45 a.m. on Monday, 19 July 1999."
The notice was unsigned but the facsimile coversheet indicates that it purported to emanate from Kelly of the Construction and General Division of the CFMEU and it was addressed to Cariss of Transfield/Thiess.
According to Chittick's evidence, the proposed date for the meeting (19 July 1999) was a date upon which he did not want any disruption to the workforce because on that day he had arranged for certain road closures on the Burswood site so that particular work could be carried out. He had also arranged for an earlier than normal commencement time so that the particular work could be completed as soon as possible. Chittick said that to re-arrange the road closures would have caused considerable disruption. Chittick said that as a result of receiving the notice, he contacted Graham Phillip Pallot ("Pallot"), another organiser with the CFMEU, and arranged for the meeting to be held on Tuesday, 20 July 1999.
It is important to note that in the notice sent by Kelly to the Transfield/Thiess Joint Venture, no mention is made of the name or names of the persons from the CFMEU who were to attend the meeting. I do not accept the evidence called by the defendant that verbal notification was given of McDonald's attendance.
On 20 July 1999, Chittick said that he arrived at the site compound, which was within the East Parade premises at 6.40 am. He said that he met the defendant in the compound which was an area designated as the site compound within the East Parade premises. The area is labelled "site compound" in exhibit "A".
Chittick's evidence was that the defendant was inside the compound, together with Pallot, Kelly and a shop steward, David Brian Cockshott ("Cockshott").
Chittick's evidence was that when he approached the defendant he was told by the defendant that the meeting would be outside and that the defendant left the compound and went to a bitumen roadway adjacent to the compound but within the East Parade premises.
In the course of the trial there was considerable dispute as to where the meeting was held, but as I have said I accept the evidence of the plaintiff's witnesses in that respect and have concluded that the meeting was held on the road that was being developed as an access road to the bridge over the river. In that respect the defendant's witnesses maintain that the meeting was held in an area outside the compound on a dirt road leading into the compound from Summers Street. I do not accept that evidence.
Chittick's evidence was that at about 7.00 am he saw workers leave the compound and proceed to the area I have described where the defendant, Kelly and Pallot conducted a meeting. Chittick said that he saw the defendant addressing the meeting, which lasted for about 20 minutes. He said, and I accept that, the meeting lasted for about 20 minutes between 7.00 am and 7.20 am which was within the normal working hours of the Transfield/Thiess Joint Venture at that date.
Following the meeting, Chittick said that Cockshott and Kelly approached the site office where he spoke to them and was told by Cockshott that the staff were going home for two days. Chittick said that he was told by Kelly that it had nothing to do with the particular job but that the two-day stoppage arose out of what was described as "a national issue".
Chittick's evidence was that the defendant also came to the compound and he asked the defendant if he would talk to Cariss about what had been resolved at the meeting. Cariss was the project manager on stage two of the Graham Farmer Freeway and, as I understand it, in charge of the work that was then in progress. Chittick's evidence was that the defendant refused to talk to Cariss as to what had been resolved but that Cariss came out of his office and spoke to both the defendant and to Pallot.
Chittick's evidence was that the defendant told Cariss "The boys have gone home for 48 hours because of the campaign against Thiess to use labour hire companies".
Cariss' evidence was slightly different to that of Chittick in that he deposed to the fact that he arrived at work at around about 6.55 am on Tuesday, 20 July 1999 and when he arrived he said he saw the defendant in the compound. His evidence was that Pallot and other person whom he knew to be an organiser with the CFMEU was with the defendant. Cariss' evidence was that he spoke to the defendant and said:
"I didn't know you were coming, your name wasn't on the notice. What's the reason for the meeting?"
The defendant said, "it's concerning the use of labour hire companies by Thiess and Transfield". Cariss said, "we don't use them on this project". Pallot said, "Come on Joe, let's get going".
Cariss' evidence was that he saw the workers together with the defendant and Pallot walk to a bitumen road area adjacent to the entrance to the site office compound within the East Parade premises and that he went to the site office. Cariss' evidence was that he could see the employees, together with the defendant and others, apparently holding a meeting, which he said was held between 7.00 and 7.30 am.
Cariss' evidence was that after the meeting he spoke to the defendant outside his office and was told, "The boys have gone home for 48 hours because of the campaign against Thiess to use labour hire companies".
Cariss' evidence, which was consistent with the evidence of Chittick, was that, after the conversation, the workforce did not return until Friday, 23 July 1999.
Other witnesses were called for the plaintiff but it is not necessary to outline their evidence in these reasons as I accept the evidence of Cariss and Chittick as truthful and accurate.
For the defence case, the defendant and his witnesses maintain that the meeting did not occur on the East Parade premises but on the dirt road which joins Summers Street and which runs to the site compound. The defendant's evidence, supported by other witnesses for the defendant, was that the meeting occurred at the corner of the dirt track where the track turns towards the river. The defendant maintains that the area where the meeting occurred was not on the East Parade premises but on a vacant lot outside the site compound and away from the East Parade premises. The defendant's evidence was that he never entered the site compound and that he never entered what he understood to be the East Parade site. The definition of the East Parade site and its boundaries will be discussed later in these reasons but I do not accept the defendant's evidence that he did not enter the site compound, nor do I accept his evidence that the meeting took place on the dirt road, rather than on the access road that was being developed as described by the plaintiff's witnesses. In addition, I do not accept the defendant's evidence that the meeting commenced at 6.45 am and concluded at about 7.00 am.
The evidence of the defendant and his witnesses was that there were a number of issues currently under consideration by the CFMEU and its members and that the officers of the CFMEU, including the defendant, Pallot and Kelly, were attending many meetings around 20 July 1999 on a number of worksites. Until the District Court action was commenced, there was no reason for any of the defendant's witnesses to have recalled the events of 20 July 1999 and, in my view, for that reason, their evidence is less acceptable than that of Chittick, who, as I have said, made notes immediately after the meeting, which were used to construct his affidavit. In addition, in my opinion, the evidence called on behalf of the defendant as to the commencement and completion of the time of the meeting was contrived to fit in with the undertaking.

I would add, although I place little weight upon it, that the evidence in exhibits 2 and 3, which the defendant agrees were accurate reports of interviews conducted with him reveal generally the defendant's attitude towards statutory legal obligations which would purport to limit his activities as a Union official.
Apart from the factual matters which, as I have said, I would resolve in favour of the plaintiff, the defendant also submits that the undertaking given by him was imprecise and ambiguous and that in any event, irrespective of the findings of fact, his conduct was not in breach of the undertaking which he signed and which settled the District Court action.
In dealing with that issue, it is important to note that the proceedings in the District Court were commenced by pleadings which defined the East Parade premises and the evidence indicates that the terminology used by witnesses was such that the term "the East Parade premises" was common parlance amongst people connected with this project. The exact parameters of those premises, however, is another matter.
As part of the evidence in this action, the plaintiff tendered a series of letters between the plaintiff's solicitors and the defendant's solicitors that led to the settlement of the District Court action.
Initially, the plaintiff's solicitors proposed that the action be settled by undertakings which were attached to a letter from the plaintiff's solicitors to the defendant via his solicitors under cover of a letter of 7 September 1998. It is to be noted that the undertakings, as originally drawn made no reference to either the "East Parade premises" or the "Burswood premises". The original proposed undertaking referred to the "Transfield/Thiess Joint Venture Project work site on the Graham Farmer freeway".
By letter of 15 September 1998, solicitors for the defendants in the District Court action indicated that the defendant, McDonald, was prepared to sign undertakings and some correspondence ensued. Ultimately, by letter of 13 November 1998, the solicitors for the defendant formulated undertakings which were sent to the plaintiff's solicitors in the form in which they were ultimately executed. For the first time in those undertakings, mention was made of "the East Parade premises" and "the Burswood premises". It is, in my opinion, of some significance that the terminology was selected by the defendant's solicitors rather than the plaintiff's. Be that as it may, in my opinion, the defendant clearly knew that he had no right to be either in the site compound or upon the road where, on my finding, the meeting of 20 July 1999 occurred. Whilst to a person unfamiliar with the terminology used and unfamiliar with the working arrangements between CFMEU members and the Transfield/Thiess Joint Venture, the term, "the East Parade premises" may not have a readily ascertainable meaning, in my view, all of the parties to the District Court action were clearly aware as to what that term meant. At least it was, or should have been, quite plain to them that the access road, which was being constructed to join the bridge over the river, was part of "the East Parade premises".
Whilst I accept the contentions advanced by counsel for the defendant that had the meeting occurred on the dirt road outside the site compound in the vacant lot, a question may properly have arisen as to whether that area was within the definition of "the East Parade premises", the access road fell within that description as understood both by all the plaintiff's witnesses and those called by the defendant. In my opinion, it is because the area where the meeting occurred fell within that description that the defendant's witnesses were so precise in their evidence in identifying the area of the meeting as being on the dirt road so that it would not fall within the area specified in the undertaking.
In relation to the time of the meeting, as I have already indicated, in my view there is ample evidence that the meeting commenced at around 7.00 am and concluded somewhere close to 7.20 am. Not only did Cariss and Chittick testify to that effect, but Cockshott (called on behalf of the defendant) said that the meeting commenced at about 6.50 am or 6.55 am and concluded between 7.15 am and 7.20 am. It is common ground that, as at the date of the meeting, 7.00 am was the normal commencement time of the workforce at the Joint Venture site.
The essential factual matters having been determined, it is necessary to consider the legal principles surrounding this application. The first matter concerns the onus and standard of proof. In that respect it is to be noted that whilst the criminal law of Western Australia was codified in the Criminal Code, that Code was enacted as appendix "B" to the Criminal Code Act 1913.
By s 7 of appendix "B", the offence known as contempt of court was preserved from codification. That section provides:
"7Contempt of Court
Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as 'contempt of court'; but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission."
In my opinion it is clear, therefore, that the criminal offence of contempt of court was not codified in the Criminal Code but remains to be determined according to, and is governed by common law principles. In R v Pearce (1992) 7 WAR 395 Malcolm CJ said at 427:
"The offence of criminal contempt is a common law offence. Consequently the 'defence' of mistake as provided for in s 24 of the Criminal Code does not apply. Instead, it is necessary to look at the position at common law. The relevant defence at common law is referred to as mistake of fact."
Malcolm CJ went on to consider the common law position, particularly as modified by Director of Public Prosecutions v Morgan [1976] AC 182 where the House of Lords, in the context of a sexual assault case, determined that any mistake, providing it was an honest mistake, need not be reasonable. Malcolm CJ concluded at 428 after examining the relevant authorities that for the purposes of Australian law:
"Mistake denies the intention or other mental element required for an offence. It also is an element of the defence of honest and reasonable mistake of fact: see Proudman v Dayman (1941) 67 CLR 536. This defence has been described in terms of an honest and reasonable but mistaken belief in a state of facts which, if true, would make the conduct of the accused innocent. Mistake may also be relevant where the existence of a belief is required as an element of justification or excuse."
In this case the defendant maintains that the meeting occurred on the access road outside the site compound. He said that to his mind, his presence in that area was not in breach of his undertaking because the area was not part of "the East Parade premises". Having concluded, however, that the meeting did not take place where the defendant said it did, but rather where Chittick and Cariss say the meeting occurred, I am of the view that the defendant's evidence in this respect should not be accepted. Once the conclusion is reached, that as a matter of fact the meeting took place on what was to become the access road to the bridge across the river, in my opinion there could be no question that the defendant realised that this area was part of the site works and part of the road construction for access to the bridge. In any event, in my opinion, the defendant never put his mind to the question as to whether the area where the meeting occurred was in breach of his undertaking.
In his evidence the defendant said that he kept a copy of the undertaking on file and that he had referred to it "probably once". He referred to the undertaking at around the time he had received it. In answer to a question in cross-examination, he agreed that so far as he recalled he had not looked at it again but that it was there to look at if it was necessary.
Taking that evidence into account, in my opinion, the defendant paid scant regard to the undertaking and in my opinion its terms mattered little to him. He did not consider the undertaking to be of any particular significance and in my opinion was not concerned whether his conduct was in breach of the undertaking or not. As I stated earlier in these reasons, the two newspaper articles, exhibits "2" and "3", lend weight to the conclusion that the defendant paid scant regard to his obligations, either pursuant to the undertaking or his legal obligations generally, particularly where the interests of the members of the CFMEU were involved. It follows, in my opinion, that the defendant never put his mind to the question as to whether or not his presence on 20 July 1999 was or was not in breach of the undertaking. He did not form a view one way or the other so as to give rise to a belief on his part such as would constitute a defence: Proudman v Dayman (1941) 67 CLR 536.
The next matter for consideration is the onus and standard of proof. In that respect, while there was some debate in the course of the hearing of this matter as to the correct standard of proof, in the end it was common ground that the plaintiff was required to prove the case beyond reasonable doubt. I respectfully agree that that is the standard of proof required in such an action: see Re The Royal Commission into the Use of Executive Power; The Queen v Parry, Saxon & Smith, unreported; SCt of WA; Library No 970196; 1 May 1997 per Malcolm CJ at 35.
The next matter for consideration is whether the undertakings given by the defendant were ambiguous or not sufficiently, readily understandable so that his conduct would not be in breach of them. In that respect, counsel for the defendant submitted that the law in relation to contempt arising out of undertakings is to be equated with the law in relation to breaching injunctions.
Counsel for the defendant submitted that the undertakings should stand-alone and not require reference to any other document for their understanding. In that respect, as I have already indicated, the term "the East Parade premises" was defined in the statement of claim as set out earlier in the reasons. Counsel for the defendant maintains that there is nothing in the undertaking which imports that definition into the undertaking and that the defendant could not be in breach of the undertaking in circumstances where he was required to look at another document in order to determine the meaning to be given to it. In that respect it is, however, to be remembered that the term "the East Parade premises" in the undertaking, was an expression which emanated from the defendant's own solicitors and became part of the undertaking which he signed.
As I have already indicated, on my view of the facts, that term was in common parlance in relation to this particular project and was clearly understood by those who worked on the project, including the members of the CFMEU. Whilst the exact boundaries of the East Parade premises may not have been capable of precise definition, in my view, the area where the meeting occurred, was within that expression as understood by everybody connected with the site. I reject the contention by counsel for the defendant that reference would need to be made to the statement of claim in order for the terms of the undertaking to be understood. The final undertaking was formulated by the defendant's solicitors and signed by him.
In reaching that conclusion, I have taken into account the views of Southwell J in McNair Anderson & Associates v Hinch [1985] VR 309 at 311, citing with approval, Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503 where Windyer J said:
"Those who give undertakings to a court are bound by the language they use. If its true meaning, although not immediately plain, can be ascertained according to the ordinary rules of construction, then the person giving the undertaking is bound by it in that sense.
In my opinion, no different principle can be applied where injunctions, rather than undertakings are under consideration.
For my part I would have thought it would seldom be permissible in proceedings for contempt to go behind the order and to examine the reasons for judgment as an aid to construction of the order. Borrie and Lowe in Law of Contempt, Second Edition., p 395 say:
'It is clearly established that a person will not be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous'."
Accordingly, one must first look at the order and decide whether it is clear and unambiguous in its terms. If it is, then it is unnecessary to go beyond it in order to aid construction: if it is not clear and unambiguous in its terms, a breach of it could not be proved. See also Commissioner of Water Resources v Federated Engine Drivers and Fireman's Association of Australasia Queensland Branch and Ors[1988] 2 Qd R 385 per McPherson J at 390-391. Although that case dealt with breach of an injunction, in my view there is little difference between an injunction and an undertaking embodied in an order as is the case here, so that the same principles apply: see also R & I Bank of Western Australia v Anchorage Investments Pty Ltd (1992) 10 WAR 59 per Ipp J at 69.
I accept that those principles apply to this case and that the undertakings given by the defendant should be looked at in that light. However, in my view, the ambiguity contended for by counsel for the defendant in relation to undertaking (b), simply does not exist.
Also of significance is the authority of Barwick CJ propounded in Australian Consolidated Press Ltd v Morgan & Anor (supra) at 492:
"If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it."
It is common ground that the defendant was not named in the facsimile informing the Joint Venture partners of the meeting and, bearing in mind the terms of the undertaking, the omission in that respect was significant.
Turning to undertaking (c), as outlined earlier in these reasons, it is common ground that the meeting of 20 July 1999 purported to be held pursuant to s 285C(1) and s 285C(2) of the Act. That section provides:
"285C Discussions with employees
(1)A person who holds a permit in force under this Division may enter premises in which:
(a)work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and
(b)employees who are members, or eligible to become members, of that organisation work;
for the purposes of holding discussions with any of those employees who wish to participate in those discussions.
(2)The person may only enter the premises during working hours and may only hold the discussions during the employees' meal-time or other breaks."
The intention of the CFMEU was to hold the meeting prior to the commencement of the working day on 20 April 1999. In that respect, in my opinion, the defendant and the other Union personnel who attended the East Parade site on the morning of 20 July, did so with the intention of holding the meeting prior to the commencement of the working day.
Had the meeting in fact been conducted prior to 7.00 am on that day (that is not within working hours) s 285C had nothing to say about the matter. Section 285C confines its attention to meetings held during working hours and permits permit holders to conduct meetings during those working hours only during meal times or other breaks. In my opinion, the permit enabled the officials of the CFMEU to enter the employer premises to hold meeting during those hours. If the meeting was in fact held outside working hours and outside the employer's premises, then it would not, in my opinion, have been governed by s 285C in any event, as that section would not have any application to a meeting held in such circumstances.
As I have indicated already, however, in my view, the meeting commenced a little late and concluded at around about 7.20 am, so that it did intervene into the working day. Accordingly, for s 285C to have been complied with, the meeting should have been held either during the employees' meal time or other breaks.
In my opinion, however, the proper construction of undertaking (c) was that there was no embargo upon the defendant holding meetings outside normal working hours but where they were held during working hours they were to be held during meal time or other breaks in the terms of the undertaking. The intention of the defendant in this case, in my opinion, was to hold the meeting on 20 July, outside the normal working hours of the Joint Venture and it was a matter of logistics that the meeting spilled over into working time. Whilst it may be that technically there was a breach of the undertaking in that respect, it was at best trivial and I would not uphold the plaintiff's claim against the defendant in relation to that particular of the claim.
Turning to the question of penalty, counsel for the plaintiff maintains that a penalty in the range of $10,000 should be imposed. As I understand the argument, had the District Court proceedings run to their conclusion, the defendant would have been liable to fines of up to $10,000. The undertaking, which he gave, was the mechanism by which that consequence was avoided. It is therefore contended by counsel for the plaintiff that a fine in that range would not be inappropriate.
For my part I can see no reason why those two considerations should bear any relationship to one another. In this case, in my opinion, the defendant's conduct should stand-alone and be judged on its own facts.
In assessing penalty there are two competing considerations that come into conflict. On the one hand, in my opinion, the defendant acted in blatant disregard of his undertakings. Bearing in mind that the defendant had given undertakings, there was no reason for him to go anywhere near the Joint Venture site on the morning in question. Other Union officials were there and they could properly have conducted the meeting. As I have already said in the course of these reasons, in my opinion, the defendant paid scant regard to the terms of the undertakings.
On the other hand, I am equally of the view that the defendant was a conscientious Union official who took very seriously his obligations towards the workforce and who was at the relevant time dedicated to the cause of protecting Union members working on the site. The attitude expressed in the two newspaper articles, exhibits "2" and "3" can be read in that light.
In addition to these factors, it must be borne in mind that an undertaking given to a superior court is a matter of importance to the administration of justice. Those who give such undertakings are bound to honour them or face the serious consequences that follow from breach.
In all of the circumstances I am of the view that the defendant will be sufficiently punished if ordered to pay the cost of these proceedings and fined the sum of $2,000. I am told by counsel for the plaintiff that the defendant has no prior record for such conduct and it is to be hoped that he will not come before the court in similar circumstances again. If he does, more serious consequences are likely to be visited upon him.