Federal Court of Australia
"2
CATCHWORDS
Competency of appeal ~- whether breach of award pursuant to secticn 41 of the Conciliation and"Arbitration Act
1904 a criminal offence ~- legislative intention behind s.119 of Conciliation and Arbitration Act 1904 - whether proceedings in which imposition of penalty sought pursuant
to s.119 are criminal proceedings.
Robert Leslie Gapes v. The Commercial Bank of Australia Limited
V. No. 11 of 1979
Coram: Smithers, J.B. Sweeney, Evatt, Deane and Fisher JJ.
Melbourne
4 October 1979
uw
EN VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISTON
JUDGES MAKING ORDER:
DATE OF ORDER:
\
ERE MADE:
; COURT ORDERS THAT:
2H
. . IN THE FEDERAL COURT OF AUSTRALIA
V. No. 11 of 1979
BETWEEN: ROBERT LESLIE GAPES
Appellant
AND: THE COMMERCIAL BANK
OF AUSTRALIA LIMTTED
Respondent
ORDER
Smithers, J.B. Sweeney, Evatt, Deane and Fisher JJ. 4 October 1979
Melbourne
It appearing that the judgment
appealed from is not a judgment of acquittal in a criminal
proceeding after the hearing on the merits, the Court finds that
the appeal to the Full Court of the Federal Court is competent.
meee ta pee
IN THE FEDERAL COURT OF AUSTRALTA ) VICTORIA DISTRICT REGISTRY V No. 11 of 1979 INDUSTRIAL DIVISIOW
BETWEEN: ROBERT LESLIE GAPES
Appellant
A ND: THE COMMERCIAL BANK
OF AUSTRALIA LIMITED
Respondent
CORAM: Smithers, J.B. Sweeney, Evatt, Deane and Fisher JJ.
4 October, 1979
REASONS FOR JUDGMENT
SMITHERS J.: The question for decision arises on a preliminary
point going to the competency of the appeal. The question is whether proceedings in which the imposition of a penalty for the breach of a term of an award made pursuant to s.41 of the
Conciliation and Arbitration Act 1904 (the Act) is sought
pursuant to s.119 of the Act are proceedings in respect of a criminal offence. If so then by reason of the decision of the Full Court in Thompson v. Mastertouch T.V. Service Pty. Ltd. (1978) 19 A.L.R. 547 the appeal is incompetent for the reason that it would be an appeal in criminal proceedings after a
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