CATCHWORDS Contempt of Court - alleged breaches of interlocutory order - aiding and abetting contempt - onus of proof - whether proper service of order - whether parties charged had been "notified of the terms" of the order - whether to dispense with service - whether respondents contravened order in failure to allege essential element - absence of evidence to support allegations - whether charge against individual sustainable if charge against Society failed. Industrial Organization - whether branch officer had authority to bind federal body - construction of rules of branch and federal body - rules conferring autonomy on branch, Federal Court Rules 0.7 r. 15; 0.37 r. 23 0.40 rv. 7 Law Society of New South Wales v Kinsella (unreported) NSW C.A. Flamingo Park Pty. Ltd. wv Dolly Dolly Creation Pty. Ltd. (1985) 59 ALR 247 Australian Meat Industry Employees' Union v Mudginberri Station Pty. Ltd. (1985) 61 ALR 635 Helton v Allen (1940) 63 CLR 691 Foley v Herald-Sun T.V. Pty. Ltd. and anor. £1981] VR 315 Yorke v Lucas (1983) 49 ALR 672 Pee NAPA Re Cyesretar f v The Waterside Workers' Federation of Australia v Burgess Brothers Limited (1916) 21 CLR 129 The Commonwealth Steamship Owners' Association v The Federated Seamen's Union of Australasia (1923) 33 CLR Imlach v Daley (1985) ALR 377 . Williams v Hursey (1959) 103 €LR 30 GARRY FRANCIS BULLOCK, JOHN SKILBECK, GRAHAM JAMES HARKNESS and WILLIAM BARLOW and THE FEDERATED FURNISHING TRADES SOCIETY OF AUSTRALASTA, L. KYRIACOU, A. FINDLAY, R. SHUGG, ALVONNE NOMINEES PTY. LTD. (Trading as A. F. CARPET DISTRIBUTORS), COLONY CARPETS PTY. LTD., R. G. CARPET AGENCIES PTY. OUTD., CARPET WHOLESALERS (VIC.}) PITY. LTD., OTTO FLOORS PTY. LTD., V. E. MACKEY & CO. PITY. LTD., JASON CARPETS COMMERCIAL PTY. LTD. and GURIAN PTY. LTD. (Trading as MYER TEALE) NO. VG 284 OF 1984 KEELY J. Melbourne 23 May, 1986 a - -, —_ *, oa - H IN TUE FEDERAL COUET OF AUSTRALIA ) ' $ VICTORIAN DISTRICT REGISTRY 8) 7G Uo 234 sf L334 ts GENERAL DIVistot ) re ; GARRY FRANCIS BULLOCK, I JOHN SKILBECK, GRAHAM { JAMES HARKNESS and i WILLIAM BARLOH : rs t \ Applicants AND THE FEDERATED FURNISHING TRADES SOCIETY bE AUSTRALASTA L. KYPIACOU, aA. FINDLAT, R. SHUGG, ALVONNE NOMINEES Erv. LID. (Treading as a. F. CARPET DISTRIBUTORS), ! COLONY CARPETS Pry. \" LID. R G. CARPET \ fa see 8: ort AGENCIES Fry. LID. CARPET WHOLESALEPS (ViIC} , ETY. LTD. OTTO FLOORS 1 PIY. LTD., V. BE. MACKEY & CO. Fry'. LTD., JASON , LTD. and GURIAN Pry. LTD. (Trading as MYER TEALE) ~ waar - aft Respondents 23 MAY, 1986 KEELY J. (, I fe \° | t t © REASONS FOR JUDGMENT a (re Notice of Motion alleging contempt of court) iene Garry Francis Bullock, Jonn Skilbeck and James "we foe Harkness have moved for orders that The Federated Furnishing eee ee ao a Trades Sociaty of Australasia (the respondent Society), A. Findlay and R. Shugg "be punished for contempt of Court", alleged to have been committed in September and October, oo Panes . oe pean 1985. In the substantive action there are four applicants and twelve respondents but it is convenitent to refer, in a these reasons for judgment, to the three movers of the motion as the applicants and to the three raspondents to that motion as the respondents. The adplicants allege that each of the yespondants has wilfully and contumaciously contravened and disobeyed.an order of a Full Court made on 17 December 1984, the relevant terms of which will be set out latec. The New South Wales Court of Appeal (Hope, Reynolds and Samuels JJA) in Law Society of New South Wales v Kinsella said "Contumacy is a form of criminal contempt. In order that it be established one must be satisfied beyond reasonable doubt about the events that have taken place, and that they constitute contumacy." That judgment was unreportad but the passage was quoted by Wilcox dg. in Flamingo Fark Pty. Ltd. v Dollv Doliy Creation Pty. Ltd. and others (1985) 59 ALR 247 at 259 and by a Full Court in Australian Meat Industry Emplovees' Union v Muddinberri Station Fty. Ltd. (1985) 61 ALR 635 at 645 (per Smithers and Northrop JJ). However, in the present proceedings the applicants sought that the three respondents be punished for contempt of court even if the evidence failed to establish contumacy. In those circumstances, in considering the evidence I have not required proof beyond reasonable doubt. On the other hand, I agree, with respect, with the principle applied by Wilcox J. in Flamingos Park (at 262), namely, that "... the gravity of eae c= re wee ern eee a) whe ee ao moo mr RT TI Ve rT. v reo wo re ee a ee as the consequence rclowing from a particular fanding is one b consideration which must affect the degres cf satisfaction necessary for the purvose ..." (Halton v Allen (1940) 63 CLR 691). The "statement of charge", dated 4 November 1995, which accompanied the notice of motion was quite inadequate and was replaced by one deliverad on 20 November 1985 pursuant to a direction by the cours. During the hearing two of tha fourteen allegations of contampt were withdrawn and the statement of charge was amended by leave (tne amended OU fo charge). That statement made it clear that the cr a statamen a cenduct allegad to constituts contempt by the respondent Society consisted of conduct at 61 Drummond Street, South uy Carlton by Mr. Findlay, on 2 September, 1985 and by Mr. LL. nd conduct by Mr. Shugg on 25 fu Kyriacou on 3 September, 1985 October, 1985 at a building site at 151 Mt. Alexander Road, Flemington. The amended statement of charge alleged that the conduct of Mr. Findlay, Mr. Kyriacou and Mr. Shugg was, in each case, conduct as the "servant or agent" of the respondent Society. It also alleged that Messrs. Findlay and Shugg by performing those acts were each guilty of contempt of court in that each "did aid abett (sic) council (sic) procure and was directly and indirectiy concerned in conduct of the kind described" in the statament of charge relating to the respondent Society. qoasee ae ~Y oe ott ee cr es pene to T " > TH Frere eon Rog were og fae ~ 4 On 12 November 1985, ain discussing tha question of a oe hearing tha motion, the CGurt said:- a mh dat "Ja. ib does 5 that matter doe x aver 'that May be, "that the affidavits upon whi n ely be identified. At the moment there has be tendency to mix them ail in together ... with matters ralating to other noticas of motion... It behooves everyone to have their documents in the 'proper form ... I do think the applicants' nouse on that needs to be put in order." Based substantially upon the terms of an application by the applicants, on 19 November, 1985 directions were given. The terms of those directions were contained in an order which was taken out by the solicitors for the applicants and entered on 21 November, 1985 and which included the following: - (b) The First, Sacond and Thirdnamed Applicants file and deliver to the olicitors for the First, Third and Fourthnamed Respondents any further Affidavits they intend to rely on or before the qth November, 1995." Notwithstanding the terms of those directions, the applicants' solicitors filed further affidavit material after the date fixed for the filing of any further affidavits by them. The respondents'solicitors had made it quite clear to the applicants' solicitors that they expected them to adhere to the directions. Ina letter dated 11 December, 1985, they wrote that they assumed that the material which had been delivered to that date was "the only material upon which you intend to rely" and went onto "formally advise (that) we shall object in the strongest possible terms to the admission of any further material upon which you may seek to rely ...". ie yoo Vere oe Regine, ot wu ~ we wee wae 5 . em Fy ee tt ee pee ere wee ' , a , ou ct x & Entirely undeterred by tne tc-erms of fEnhat Letter, co ua applicants' solicitors, by lecter dated 17 December, 13 advised the respondents' solicitors "as a matkear of courtsey (sic), that we do not believe that it is ancumbant (sic) upon us to put forth all our supporting material by way of Affidavit". They added that they would be serving "shortily" (i.e. tnvee weeks after the time directed by the court) various fucther affidavits including a proposed "Affidavit from a Deponent in Japan". They then said :- "In the avenn bthac we are instructed of advised of Material which may be helsful to our client's Csici Application we hereby advise that we intend to, where we deem it appropriate, prepare and serve further material. Whilst we hear your wish to object to the service of further material we do not believe that any reasonable Court would deny our clients the opportunity to put forth within a reasonable time, further material. In addition, we say that the presentation of supporting material by way of Affidavit should, in fact, please you as it puts your cliant in a position of knowledge prior to the Hearing of our cliank's (sic) Application. You are no doubt aware that it is open to us to call oral vidence at the Hearing and not to limit same to material contained in Affidavits." Having ragard to the directions, sought by the applicants and made by the court on 193 Wovember 1985, prescribing a time for the filing or "any further affidavits", it is) difficult to understand how kha applicants' solicitors coulda have been s0 confident in their Belief that they would be given leave to use further Materiai. It is even more difficult to understand, having regard to Order 40 Rule 7 of the Federal Court Rules, how they could so confidently assert "that it is open to us to call oral evidence at the Hearing and not to limit same to material contained in Affidavits". =r, } t c t bY Saree emwe-—-—— = »- wpl. 7 i wt Ve See eee eee ques rol as The nearing commenced on 24 February, 1386 and the applicants' counsal immediately caterred to the "... problem that the applicants face (is) to satisfy your Honour that there has been parsonal service sf thea order of the fuli court, Alternatively, for your Honour to exercise a discretion under the rules to dispense with personal service wean In this connexion he sought leave to tender in evidence further affidavits. After hearing argument, the Court gave the applicants leave to do 50. Leave was also sought to call oral avidence but the applicants' counsel, after a conferance with the proposed witness, did not pursue that application. Tha Court was also informed that the apolicants would not seek to file the procosed affidavit from fecred cto in the letter dated 17 it a deponent in Japan, fr ul Gtee nm ren ct a ry ut December 1985 from the applicant Questions as to whether the alleged conduct of Messrs. Findlay, Kyriacou and Shugg was conduct by a "servant or agent" of the respondent Society were raised from the bench on 26 February 1986. The applicants then sought to rely upon material which had been filed in November and December 1984 in support of the application for interlocutory injunctions. That material included the registered rules of the respondent Society and of its Victorian Branch. It also included an affidavit by the firstnamed applicant, Mr. Bullock, sworn on 30 October, 1984. The raspondents' counsel objected to that material on grounds which included an overall objection that new material should not ba parmitted in thase proceedings, i. oan Cote ta pees eee nn ' oer sae me ve having regard to the time Limits prescribed by the directions Jiven on 19 November, 1985. After hearing argument on that objection the Court qava the applicants lLlaave to file such material, subject toa any objecticn to admissibility on further grounds and on the basis that the vespondants would ba entitled to an adiournmenr and to an order for costs. The court described as unsatisfactory the applicants' attempts in 1986 to rely upon material tandered in 19384 in éarliaer proceedings and referred to the need for the applicants to puc theie "house completely in order and serve upon the fespondents specific details of precisely what material" they relied upon. After the matter was stood down for a short time the applicants' counsel sought an adjournment, saying:- ".a. it seems dasirable to our side, and perhaps desirable from the respondents' side, ... that the respondent knows precisely what evidence it is that [I will be seeking to rely upon and I know precisely what evidence is available to me to be able to lead." The application for an adjournment was not opposed and, because of other commitments, the matter was adjourned until 18 March, 1986 with an order as to costs. It was directed that the applicants should within seven days serve upon the respondents' solicitors a statement specifying Clearly all those affidavits and exhibits upon which they Wished to rely in support of the present motion, including affidavits previously filed in the substantive proceedings, and identifying the actual paragraphs in those previously filed affidavits. That statement was supplied on5 March 1986 and the hearing resumed on 18 March 1986. an ~ wri ge cre Despite the tarms of the directions sought and obtained by the applicants on 26 February 1996, the applicants, on 18 March 1986, sought to tender in evidence three further affidavits (sworn on 17 and 18 March 1986) - which of course were not referred to in the applicants' statemant.of S March 1986. The tender was opposed and was rejected in the following terms: - directions given and the correspondence that passed - for example, the clear warning given by the respondent's solicitors that they would be objecting to any further material - the earliar discussions in this court when leave was sought... Con] 24th and then again on the 26th; in those circumstances, couplad with the Significant matter Crod wnich Dr. Buchanan refers of the absence of any axplanation for this - any good cause - it seems come it would not be a proper course, in contempt proceedings in particular, to grant the leave that is sought by the applicant." " given the overall conduct of this action, tha It should perhaps be added that the further atfidavits were directed towards establishing that Mr. Kyriacou, on 27 September 1985, (i.e. after the date of some of the alleged contempts) had knowledge of the existence of the order. However they did not show that he had notice of the terms of that order. The hearing continued on 19 and 20 March 1986 and on 5, 6 and 7 May 1986. None of the respondents gave evidence, nor was there any cross-examination of the persons who made the affidavits relied upon by the applicants. Accordingly, the motion is to be determined upon that affidavit evidence (excluding those parts which were held to be inadmissible) e435 eee ne Ps anny aay bkogether witn certain documents which were placed in Tha fiest question 15 whether the applicants have complied with Order 37 of the Feaeral Court Rules as to the service of the order of the Full Court, made on 17 December 1984 (the-order), which order is said to have been disobeyed by the three respondents. Order 37 Rule 2, so far as Material, contains the following provisions: ug (1) Subjece to the Rules, an order shall not be enforced by committal or sequestration unless - (ad the order or a certifiad or office copy thereof is served personally on the person bound; (2) Subject to the Rules, where the person bound by an order is a corporation or organization the ordar shall not be enforced by committal of an officer of the person bound or by sequestration of the property of an officer or the person bound unless, in addition to service under sub-rule (1) on the person bound - (a) the order or a certified or office copy thereof is served personally on the officer; aaa (3) An order or a certified office copy thereof served under this rule must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if - (b) where the order requires the person bound to abstain from doing an act, the person bound disobeys the order. enee (5) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment or order has notice of the judgment or order - (a) by being present when the judgment is pronounced or when the order is made; or . er pr nea gege rere 10. (o) by being notified of the terms of the judgment or order whether by telephone, telegram or otherwise, the judgment or order may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with this rule. (6) The Court may dispense with service under this rule." . Tt is clear that neither Mr. Findlay nor Mr. Shugg was served parsonally but Mr. Jolson of couns2i on behalf of the applicants submitted that there had been proper service upon the respondent Society. Reliance was placed upon a number of matters, including the terms of Order 7 Rule 15 which is in the following terms: "15. (1) This rule shall operate for so long as section 146 of the Conciliation and Arbitration Act 1904 provides to the effect.of sub-rule (2) hereof. (2) Service of any notice or.process on the President, Chairman or Secretary or at the registered office of an organization shall be sufficient for all purposes." In response to that contention Br. Buchanan, of Queens Counsel, who appeared with Mr. Strugnell of counsel for the three respondents, advanced a number of submissions. It is not necessary to deal with all of them becausa I accept his submission that the action of putting a copy of the order under the door of the unattended office of the respondent Society did not constitute service "at the registered office" of the organization, within the meaning of Rule 15(2). In addition there is no evidence that the copy of the order put under the door bore "a notice ... that the person served is Aen oer a hs ats tee ' * rrr oa ot oe an wm ge eee nne ava rm 4 aeoé Jiable to ... saquastration of property if ... the cerson pound discbeys the order Rule 2(3)}. Tt may be added that there is no evidence that such a notice was endorsed on the covy of the order which was posted by the applicants' solicitors to the respondents' solicitors. That was one of the matters upon which the applicants sought to rely in putting a submission based upon Order 37 Rule 2 (5)(b) - the terms of which are set out earlier. TI accept De. Buchanan's submission that that sub-rule does not apply unless the respondents had been notified of the "terms" of the order and that it would not have been sufficient for then to have been notified of the "sudstance" of the ordar, as contended by Mr. Jolson on behalf of the applicants. I accept that, in some cases, the terms of an order made by a court are, by reason of the nature of the conduct restrained by the court, capable of being described briefly but accurately; for example, an order to refrain from publishing a particular advertisement where the party bound by the order knows the text of the advertisement, (because it has been published previously) and accordingly knows precisely what it is that the court has restrained him from doing. In such a case it may be that a respondent could be "notified of the terms of the ... order ..." by a notification which did not set out the full terms of the advertisement (cf. McGarvie J. in Foley v Herald-Sun T.V. Pty. Ltd. and anor £1981] VR 315. hea s/t awe saaemos . Se igen amen vee eee aero 7! vac Sk wo eo treet op. 2 ee oe 12. However, in the present case the order (the relevant terms of which are set out later) is expressed at some length and 105 precise text must be read in order to ascertain what conduct has been prohibited by the court. Even when the full taxt is read there 215, in my respectful opinion, some doubt as to the meaning cf the words "conduct of the kind described in paragraphs 2 or 3 hereof" - a matter which will be rererred to later in dealing with charges C(iii) and Ctiw). Accordingly, in my opinion it is not sufficient in the present case for the respondents to have been notified in general terms; for example that the appeal had been allowed or that che Full Court had granted injunctions. In my opinion it has not been shown that any of the three cespondents had been "notified of the terms of the ... order". It may be noted that Mr. Shugg's belief as to the terms of the injunction was such that he answered in the affirmative Mr. Pullen's question: "Don't you know that there is a Federal Court Injunction which lets me work as a sub-contractor?..." Such a description of the effect of the order does not enable one to be confident that Mr. Shugg had before that time been "notified of the terms of tha ... order", I have also considered Mr. Jolson's argument that the court should infer that the full text of the order had been notified to the respondent Society and to Messrs. Findlay and Shugg by their solicitors. On the material I am not prepared to draw that inference. I also reject his submission that, by reason of the terms of the last paragraph of the reasons eta Ott rere ee eo yan se eae Ve rp rr ar ie eee. Ls. for judgment of Woodward J., a5 a member of the Full Court, the respondents were aware of the substance of the order of the Fuil Court. I do so because, as Mr. Jolson conceded, there was no evidence that a copy of the reasons for judgmant of the Full Court, which were delivered on 11 February 1985, was received by any of the respondents at a time before the conduct said to constitute contempt of court. T am not prepared to infer, as submitted by him, that any of the three respondents received the reasons for judgment. In any event those reasons did not contain the terms of the order. Mr. Jolson also sought an order under Order 37 Rule 2(6) dispensing with service of the order upon the erespondents. I accapt his submission that it would be open to the court to make such an crder, in an appropriate case, at a time when the alleged contempt has already been committed. However, on all the material before the court in the present matter, I am not satisfied that any ground exists for making the order sought. Such an order might well be appropriate if the court were satisfied that, as a result of action by the respondents to avoid service, it had not been practicable for the applicants to effect service of the order. In the present case there was evidence of certain difficulties encountered zn December 1994 in attempting to serve the order. However, in February 1985 the court heard an application for an order permitting substituted service of the order of the Full Court and, alternatively, an order under Rule 2(6) dispensing with service. The court described the material filled in support of that application as "an appalling sat of documents" and certain of the affidavits as being "quite axtraordinary". The applicants' counsel decidad not to pursue the application for substituted service in respect of any of tha individual respondents but sought a ruling as to service upon the respondent Society. Tne court rejected the application in respect of service upon the respondent Society, saying "I am not satisfied on the material before me that it is a proper case ... it is so long since the last attempt to serve the union. I am not prepared to infer that the union office is still closed ..." The rejection of that application was based upon the applicants' failure to make any further attempt to sarve the respondents in the period between the end of December 1984 and the date of hearing that application, 18 February 1985. Notwithstanding the reasons given for that ruling, there is no avidence that the applicants have at any time during the period from the end of December 1984 until after the date of the first alleged contempt, {2 September 1985) taken any steps to serve the order of the Full Court upon any of the respondents. As Mr. Jolson conceded, "nothing further happened until September". No explanation has been proferred in the present hearing for the failure to take such steps. The foregoing is sufficient to conclude the matter in favour of the respondents. However, as other matters were fully argued, it is desirable that they be dealt with - albeit less fully than would ctharwise be the case. weer oko soe aa a Re nee teeny ery aT oa . 15. The relevant terms of the order of the Full Court, made on 17 December 1984, are as follows:- Until the hearing and determination of the Application herein or further order the firstnamed Respondent whether by itself, its servants or agents or howscever otherwise be restrained from: (b) attempting to make or enter into; (2) procuring, inducing or attempting to induce a person to make, enter into, give effect to or enforce - any contract, arrangement or understanding that prevents or hinders a person acquiring or continuing to acquire carpet laying or floor laying services from any sub-contractor or independent contractor, including any contract, arrangement or understanding in the form or to the effect of that set forth in the Schedule hereto. Until the hearing and Getermination of the Application herein or further order the firstnamed Respondent, whether by itself, its servants or agents or howsoever otherwise, be restrained from engaging in any conduct which prevents or hinders - (i) a person acquiring or continuing to acquire Carpet laying or floor laying services from any sub-contractor or independent contractor from whom the person has been accustomed to acquira such services; or (ii) any carpet layer or floor layer, who has been engaged as a sub-contractor or independent contractor by another person to supply carpet laying or floor laying services, from supplying or continuing to supply such Services to that person. Until the hearing and determination of the Application herein or further order each of the secondnamed, thirdnamed and fourthnamed Respondents be restrained from - (a) aiding, abetting, counselling or procuring; or (b) being in any way directly or indirectly concerned in - ceicce eed. D oe eee ere y is ao eeeted -wot sere age re: i IERIE WA Se eee ze 16. tu f oF the kind described in paragraphs 2 or wn me nau r2o fu ob oO (Tne three spelling errors in the order taken out by the applicants' solicitors have been corrected in the above) I shall deal separately with each paragraph in the amended Statement of Charge. A breach of paragraph 2 of the order is alleged by charge A(i), which read as follows:- "A. (2) The firstnamed Respondent by its servant or agent A. Findlay on the 2nd September 1985 at 61 Drummond Street, South Carlton in the State of Victoria did wilfully and contumaciously contravene and disobey the Order of the Full Court of the Federal Court of Australia ("the Order") made the 17th December 1984 in that it did on the said date and at the said place attempt to make or enter into and attempted to induce Graham James Harkness to make or enter into or give effect to or enforce the contract arrangement or understanding set forth in the Schedule to the Order." In my opinion the evidence before the court does not establish any such attempt by Mr. Findlay - leaving to one side the question of whether, at the material time, he was acting as the "servant or agent" of the respondent Society. Mr. Harkness deposed that at the Victorian Branch office Mr. Findlay answered him with words "to the effect" of "You can have a Commercial Union ticket if you are a corporate company, drawing wages, paying into the Aust Superannuation scheme, on workers' compensation or if you become a waged employee for a floor covering's (sic) supplier". By that statement Mr. Harkness was given an option; he could make arrangements for the formation of a company or he could become an employee of an existing company. " wer cron cee ce ne mp e epen e e p eee ri = ees wrasse cl ealaenate eeeate tate ee we opened waist _* 17. As to the argument advanced by Mr. Jolson relying upon the words "attempted to ... give effect to or enforce the ... arrangement ...", I accept Dr. Buchanan's submission that any such "arrangement" (as well as the contract) was still alleged in the charge to be the "arrangement ... set forth in the Schedule to the Order". The charge alleged an attempt "to induce". As to the meaning of those words a Full Court (Bowen CJ., Lockhart and Beaumont JJ.) in Yorke vw Lucas (1983) 49 ALR 672 at 681 said that "Citnducing a contravention" connoted "Some act of compulsion by force or threat of force or some act of persuasion or stimulation aimed at ensuring that an act is committed which constitutes a contravention". In the light of the evidence as to the "option", Mr. Findlay cannot be said to have been aiming at ensuring that an act was committed which would constitute a breach of paragraph 2 of the order. Accordingly, charge A(i) cannot be sustained. It may be added that the contract which appears in the schedule to the order and is referred to in this charge, was on its face a contract to be entered into by a company and not by a natural person, Charge A (ii), which alleged a breach of paragraph 3(i1) of the order, read as follows:- "A. (11) The firstnamed Respondent by its servant or agent A. Findlay on the 2nd September 1985 at 61 Drummond Street, South Carlton in the State of Victoria did wilfully and contumaciously contravene and disobey the Order in that it did on the said date and at the said place engage in conduct, to wit - refusing to issue us a vy ep ae Samir e wenn cakes +) eee teem es me arcs kh, = ee eee ae - -f 18. to Graham James Harkness an "OK Card" antitling the said Graham James Harkness to work as a floor layer on any commercial building site in Melbourne unless he signed an Agreemant in the form and to the effect of the Agreement set forth in the Schedula to the Order - which preventad or hindered the said Graham James Harkness a carpet layer who had been engaged as a sub-contractor by other persons to supply carpet laying services from supplying or continuing to supply such services to those persons;" In my opinion, for the reasons given in dealing with charge Ati), namely the fact that Mr. Harkness was given an "option", the evidence before the court does not establish that Mr. Findlay on 2 September 1985 refused to issue to Mr. Harkness "an "O.K. card"... unless he signed an Agreement in the form ...". Nor does the evidence establish that such a refusal, if it had occurred, had prevented or hindered Mr. Harkness as "a carpet layer who had been engaged as a sub-contractor by other persons to supply carpet laying services ...". There was no evidence either in his affidavit or elsewhere to support the allegation in that charge that he "had been engaged as a sub-contractor by other persons to supply carpet laying services ...". In his affidavit, sworn on 22 October 1985, Mr. Harkness said that he had "recently been approached by a number of floor covering suppliers to work on commercial building site jobs". However, the alleged breach by Mr. Findlay had occurred on 2 September 1985. There are other difficulties with this charge including its curious reference to the "O.K. card" being a card "entitling" Mr. Harkness to work as a floor layer on any commercial building site. ep rae 19. For tnese reasons charge Alii) cannot be sustained. Charge A(iii), which alleged a breach of paragraph 2 of the order, raad as follows:- . "A. (iii) The firstnamed Respondent by its servant or agent L. Kyriacou on the 3rd September 1985 at 61 Drummond Street, South Carlton in the State of Victoria did wilfully and contumaciously contravene and disobey the Order of the Full Court of the Federal Court of Australia ("the Order") made the 17th December 1954 in that it did on the said date and at the said place attempt to make or enter into and attempted to induce John Skilbeck to make or antar into or give effect to or enforce the contract arrangement or understanding set forth in the Schedule to the Order." This charge alleges that the "attempt" was made by Mr. L. Kyriacou. On the affidavit evidence of Mr. Skilbeck, the conversation in support of the charge was a conversation with "a girl" at the Victorian Branch office of the respondent Society. The only evidence that the alleged "attempt" was made by Mr. Kyriacou was evidence that he "walked into the union office at that time" and that a statement made by "the girl" was made "in the said Kyriacou's presence". That evidence is plainly inadequate to sustain the charge. Its inadequacy is underlined by the fact that the statement by "the girl" to Mr. Skilbeck was made after she had apparently sought and obtained instructions from some other (unknown) 'person in the Victorian Branch office. It may be added that the attempt to prove this charge also encountered some of the difficulties raised in relation to charge A{i). Charge A(iv), which alleged a breach of paragraph 3(ii) of the order, read as follows:-+ owt ne cose. a Vee yay -. we Sa et te renee eee Le SM nt gree want tess mpeen ee TED rye. ee oe as4 ope "AR. (iv) The firstnamed Respondent by its servant or agent L. Kyriacou on the 3rd September 1985 at 61 Drummond Street, South Carlton in the State of Victoria did wilfully and contumaciously contravene and disobey the Order in that it did on the said date and at the said place engage in conduct, to wit - refusing to issue to John Skilbeck an "OK Card" entitling the said John Skilbeck to work as a floor layer on any commercial building site in Melbourne unless he signed an Agreement in the form and to the effect of the Agreement set forth in the Schedule to the Order - which prevented or hindered the said John Skilbeck a carpet layer who had been angaged as a sub-contractor by other persons to supply carpet laying services from supplying or continuing to supply such services to those persons;" For the reason given in dealing with charge A(iii), namely, the fact that it alleges conduct by Mr. Kyriacou but the evidence goes no further than showing that he was physically present at the time when certain statements were made, this charge must fail. In addition, there was no evidence that Mr. Skilbeck had at that time "been engaged as a sub-contractor by other persons to supply carpet laying services". Charge A(v), which alleged a breach of paragraph 2 of the order, read as follows:- "A. (wv) The firstnamed Respondent by its servant or agent R. Shugg on the 25th October 1985 at 151 Mt. Alexander Road, Flemington in the State of Victoria did wilfully and contumaciously contravene and disobey the Order of the Full Court of the Federal Court of Australia ("the Order") made the 17th December 1984 in that 1t did on the said date and at the said place attempt to make or enter into and attempted to induce Peter Robert Pullen to make or enter into or give effact to or enforce the contract arrangement or understanding set forth in the Schedule to the Order." It should perhaps be noted at this stage that charges A(v), A(v1), A(vii) and A(viii) each alleged that the conduct + peers orm woe Siena deeb he spe 7 7 nee ot rp er aes or ogee te, > falien-alebelahiae-pareeniieds aed 21. occurred at i151 Mt. Alexander Road, Flemington. Mr. Pullen's affidavit evidence in support of each of those charges referred to events at that address. However, it also yeferred to avents at a place other than the place referred to in those four statements of charge. It gave details of a conversation at the Victorian Branch office at 61 Drummond Street, Carlton South between Mr. Pullen and "a girl called Meagan" and of a telephone conversation between Mr. Pullen and Mr. Shugg, the latter then being at that Branch office. That evidence, relating to conversations at a place other than that set out in the charges, can not be taken into account in determining these four charges. Charge A(v) encounters the same difficulty as that referred to in dealing with Charge A(i), namely, that the contract was to be entered into by a company and not by a Matural person. Leaving that aspect to one side, I consider that the affidavit evidence of Mr. Pullen establishes that Mr. Shugg attempted to induce Mr. Pullen to enter into "the contract set forth in the Schedule to the Order", The question of whether Mr. Shugg was the servant or agent of the respondent Society will be dealt with later. Charge A(vi), which alleged a breach of paragraph 3(ii) of the order, read as follows:- "A. (vi) The firstnamed Respondent by its servant or agent R. Shugg on the 25th October 1985 at 151 Mt. Alexander Road, Flemington in the State of Victoria did wilfully and contumaciously contravene and disobey the Order in that it did on the said date and at the said place engage in conduct, to wit - refusing to issue to ce eee ate eed ry -t peer ren BT rn wn ere i oe a9 wae Peter Robert Pullen an "OK Card" entitling the said Peter Robert Pullen to work as a floor layer on any commercial building site in Melbourne unless he signed an Agreement in the form and to the effect of the Agreament set forth in the Schedule to the Order - which prevented or hindered the said Peter Robert Pullen a carpet layer who had been engaged as 8s sub-contractor by other persons to supply carpet laying services from supplying or continuing to supply such services to those persons;"" This charge must fail because of the absence of any evidence that Mr. Shugg, at 151 Mt. Alexander Road, Flemington, yefused to issue to Mr. Pullen an O.K. card. It also encounters two other difficulties referred to earlier in dealing with other charges, namely (a) that the "agreement" was to be entared into by a company and not -by a natural person and (b) the reference to the 0.K. card "entitling" Mr. Pullen to work. Charge A(vii), which alleged a breach of paragraph 3(i) of the order of the Full Court, read as follows:- "A. (vii) The firstnamed Respondent by its servant or agent R. Shugg on the 25th October 1985 at 151 Mt. Alexander Road, Flemington in the State of Victoria, did wilfully and contumaciously contravene and disobey the Order in that it engaged in conduct preventing and hindering John Tucker a carpet Supplier from acquiring or continuing to acquire carpet laying services from Peter Robert Pullen a sub-contractor unless the said Peter Robert Pullen signed an agreement in or to the effect of the agreement sat forth in the Schedule to the Order." This charge failed to allege an essential element in any breach of paragraph 3(i) of the order, namely, that Mr. Pullen was a "sub-contractor ... from whom the person (Mr. Tucker) has been accustomed to acquire such services". Further, even if it had been alleged, there was no evidence a een * wo Moe ae messes t an w3Tis es io es te wee ee eee 2 red we oe eet op we ee a3. that Mr. Tucker had "been accustomed to acquire such services". That charge must fail. Charge A(vi1i), which alleged a breach of paragraph 3(ii) of the order, read as follows:- "A..(viii) The firstnamed Respondent by its servant or agent R. Shugg on the 25th October 1985 at 151 Mt. Alexander Road, Flemington in the State of Victoria, did wilfully and contumaciously contravene and disobey the Order in that it engaged in conduct preventing or hindering Peter Robert Pullen who was engaged as a sub-contractor by John Tucker from supplying or continuing to supply carpet laying services at 151 Mt. Alexander Road, Flemington in the said State unless the said Peter Robert Pullen signed an agreement in or to the affact of the agreement set forth in the Schedule to the Order." The reference, in the latter part of this charge, to the question of Mr. Pullen signing an agreement encounters a similar difficulty to that referred to in dealing with Charge A(i), namely, that the agreement was to be entered into by a company and not by a natural person. I infer from those portions of Mr. Pullen's affidavit which were admitted in evidence that he had been engaged by Mr. Tucker to supply carpet laying services as a sub-contractor. Despite Dr. Buchanan's argument to the contrary, I accept that the evidence in Mr. Pullen's affidavit, as to what was said by Mr. Shugg at 151 Mt. Alexander Road, Flemington, did establish conduct preventing or hindering Mr. Pullen from supplying carpet laying services at that address. Tee oy a oe ae "yee fan wh iN ren inp ow yee . oe ee ay re) Tre nn ep eens = be Ty ans ya oe rcmer tet pe " " wre ete cont ated oh ee! 24. Charges A(v) and A(viii) against the respondent Society, based upon the conduct of Mr. Shugg, lead to a consideration of the quastion of whether Mr. Shugg was, at the material time, the servant or agent of the respondent Sociaty. It.may be added that although similar questions would arise as to whether Mr. Kyriacou and Mr. Findlay were, at the material times, acting as the servants or agents of the respondent Society, if the evidence led in respect of those other charges had been sufficient in other respects, those questions need not be addressed because, as the reasons given earlier show, the applicants' evidence has not been sufficient. Accordingly, no detailed reference will be made to the offices held by Mr. Kyriacou and Mr. Findlay nor to the rules relating to those offices. On the evidence Mr. Shugg was an organiser of the Victorian Branch of the respondent Society. There is no evidence as to the terms of his employment and no evidence of any express authority conferred upon him by the respondent Society or by any Committee or officer of the Society having authority to do so. The need for evidence was emphasised in The Waterside Workers' Federation of Australia v Burgess Brothers Limited (1916) 21 CLR 129 where Griffith CJ. said (at 134) ",.. in a Court of Justice mere surmise or suspicion is not suffficient. A person or a corporation is not in a Court of Justice held liable for the actions of others unless his or its authority to do the actions on his or its behalf is established by evidence." were er ne eT oe TRE ene ere es ~ 7 Tr an we i a. CUA CO ee ? >. r) ne td WI That statement concerned a civil action for damages for conspiracy to cause the plaintiffs to break their contracts with men who were engaged in working for them. Barton d. said (at 134) ".,...If the Hobart branch had no authority from the present appellants for their action, the case against the latter fails for want of evidence, even if the Hobart branch, or its members, did actually conspire and combine to cause the respondent company to break their contract with their customers ..." His Honour also said (at 136): ",.. There being no express authority conferred either by antecedent instructions or by the rules of the appellants, is an authority to be implied from the relation between it and the local branch? I find no circumstances sufficing to raise that implication, for I find nothing in the relative positions of the two bodies to warrant the supposition that the one is responsible for the acts of the other not expressly authorized. Indeed, there is nothing to show that when the crucial action was taken at Hobart the Waterside Workers' Federation knew of what was being done, nor has any document been referred to which would show that it was at that time even consulted as to the course of action to be taken." The time "When the crucial action was taken" in the present matter was September-October 1985. Applying the words of Barton J. to the present matter, the evidence does not establish that the respondent Society "was at that time even consulted as to the course of action to be taken" i.e. consulted by the Victorian Branch, bearing in mind that it was at the office of that Branch at 61 Drummond Street, South Carlton, that there occurred the events detailed in the affidavits in support of charges Ali), A(ii), A(iii), Aliv), B(i) and B(ii). 265. Tam mot, of course, finding affirmatively that the respondent Society and 1ts Federal Officers were not consulted as to any relevant course of action. It may well be that they were, but, as Griffith CJ. said in Burgess, in the passage quoted earlier, "mere surmise or suspicion is not sufficient", The affidavit evidence of Mr. Skilbeck (referred,to earlier in dealing with charge A({iii)) as to words said at the Victorian Branch office in the presence of Mr. Kyriacou is not sufficient, in my opinion, to establish that the respondent Society was aware of what was being said in the Branch office. This follows from the fact that at that time Mr. Kyriacou held the office of Secretary of the Victorian Branch as well as being Secretary-Treasurer of the yespondent Society. It cannot be assumed that he passed on to the respondent Society as such, or to the President or other Federal officers, all knowledge that he obtained as Branch Secretary. Further, the certificate of the Deputy Industrial Registrar tendered in avidence by the applicants, which stated that Mr. Kyriacou hald the office of (Federal) Secretary-Treasurer, monetheless gave his occupation as "Branch Secretary". That evidence is quite consistent with Mr. Kyriacou being a full time officer of the Victorian Branch, whose duties as (Federal) Secretary-Treasurer occupied only a small proportion of his time. There is no evidence on that aspect. Bearing in mind the need for evidence - instead of mere suspicion - the present case is noteworthy for the absence of evidence; in many instances the absence of wpe rece sige noe ep eee . ran) F S oe re Lael bead REN oye eee ame 6 - " wr eT Peers perme y o 27. avidence is due to the failure by the applicants or their solicitors to take steps at an earlier stage. I have already referred to the failure to serve upon the respondents the order of the Full Court. Further, there is a reference in a letter, dated 23 November 1984, to "the matter" having been the subject of a notification to the Australian Conciliation and Arbitration Commission, but there was no evidence of what transpired at any hearings in the Commission. Reference was made to a ruling by Gray J. in proceedings in 19984 - without details being given of the ruling or of the reasons for it - but no attempt was made to explore that aspect in the present hearing. As to the role played by the respondent Society or by Federal officers since the date of the order of the Full Court, there was no evidence that the applicants or their solicitors, at any time relevant to the present proceedings, ever discussed with any Federal officer of the respondent Society any aspect of the matters; nor was there any evidence of any letter, telegram or telex sent by the applicants or their solicitors to any Federal officer or to the respondent Society itself at any relevant time. In considering whether the respondent Society was in breach of the order, it may he noted that Mr. Jolson conceded that there was no evidence that the respondent Society had at any time since the Full Court order, made on 17 December 1984, entered into an agreement with any company in the form or to the effect of . that set out in the schedule to the order of the Full Court. The absence of any such evidence is consistent with a tyra Ph 4, 4 r ene eae oop eee fy a — po ee wa een. wot set pee rea IA os ve sey ete re Ve TOPO re rem ere, = decision by the respondent Suciety to obey the oarder, irrespective of any action taken by the Victorian Brancn. It may be added that the evidence in tne case all related to Victoria. The applicants asked the court to infer that the actions Hy Mr. Shugg, the subject of the charges, were actions by him as the servant or agent of the respondent Society. Their counsel did his best with the evidence available, including various documents which were in existence during a period from November 1984 to September 1985. However, those documents in their context have failed to persuade me that the inference should be drawn that the actions of Mr. Shugg, an organiser of the Victorian Branch, were actions as the servant or agent of the respondent Society. The applicants also sought to rely upon the rules of the respondent Society and the rules of its Victorian Branch in support of their contenti®n that Mr. Shugg was acting as the servant or agent of the respondent Society. Before turning to the terms of the rules, it is desirable to examine the principles, enunciated by the Full High Court, relevant to a consideration of union rules, including the questions of whether there can be "no presumption of authority for the agent to do what the principal could not lawfully do" and whether a "rule must be construed as authorizing the Branch to settle local disputes by legal, not illegal, methods". va a 29. In Burgess Isaacs J. (at 1238) said: "... Consequently, on the well established principles of law - the first, that of two reasonably possible intandments that which is in favour of legality is preferably accepted (Co. Litt. Aa; Russell ve Amalgamated Society of Carpenters and Joiners (1912) A.C., 421, at pp. 435, 136, and Amalaamated Society of Engineers v. Smith 16 CLR 537, at p. 566), and the second, that there is no presumption of authority for the 'agent to do what the principal could not lawfully do (Poulton v London and South Western Railway Co. L.R. 2 0.B., 534, and Walters v. Graan (1899) 2 Ch., 696, at p. 703) - rule 16 cannot be read as impliedly giving authority to commit a tort or other unlawful act." Burgess was cited with approval by Knox Cd. in The Commonwealth Steamship Owners' Association v The Federated Seamen's Union of Australasia (1923) 33 CLR 297 at 303. In the same case Isaacs and Rich JJ. {at 307) rejected an argument that the decision of a Branch meeting constituted a Breach by the registered organization, saying:- "It was said that the mere fact of that decision being made at the Branch meeting constituted a breach by the organization of the term of the award referred to. The way in which that argument was presented was as follows:- By the registered rules of the respondent organization, Branches are established; and it was contended that each Branch so completely represented the whole organization at its own locality that whatever it did, rightly or wrongly, must be taken to be the act of the whole organization. There are, by rule 4, six Branches recognized, namely, at Brisbane, Newcastle, Sydney, Melbourne, Port Adelaide and Fremantle. The argument went so far as to say that a Branch resolution at Newcastle, such as was passed in Melbourne, would constitute a breach by the whole organization even though contrary resolutions were passed in Sydney and at every other Branch. We cannot accept so sweeping an argument. The Union is composed of members as its units. For convenience, Branches are established at large shipping centres, but the government and control of the Union as a corporate or quasi-corporate body is vested ina general meeting of the members, the chief executive authority being committed to a Committee of Management following the instructions of the meeting of members. A Branch has its own business; but its own tere ae steroeed, hy eres oe a hat Ave £ ee peesin ee oe ~ $0 ee 30. Branch business 15 not the business of any other Branch, and still less the business of every other Branch, or of the Union as a whole." Again, Higgins J. said (at 310-311): ".. But even if we can fairly treat the resolution of the Victorian Branch as an aiding of job control, it was a resolution of the Branch, not of the Union. Counsel for the Association, however, have axamined the rules of the Union, and contend that the action of the Branch is action of the Union. In particular, reliance is placad on rule 71: "In the avent of a dispute occurring as to wages or working conditions in any State, the members of the Branch in such State may take such steps as will lead to an immediate settlement of the dispute, but if there should be any likelihood oz the dispute extending beyond the limits of the State, the Branch officials shall immediately notify the General President and the General Secretary, and these two officials shall take such steps as the necessity of the case requires." But, in the first olace, if the Branch exercise this power to try to settle a dispute confined to a State, the action which it takes is not necessarily the action of the Union. A Branch cannot usually be treated as an agent of the Union, so as to make the acts of the Branch the acts of the Union (Denaby and Cadeby Main Collieries Ltd. v. Yorkshire Miners' Association (1906) A.C., 384; Smithies v. National Association of Operative Plasterers (1909) 1 KB, 310). Counsel cannot point to any clause in the rules of the Union that prevents these cases from applying to this case." He went on to say (at 312): ",.. There is nothing in all this to suggest that the Branch's action is to be treated as the action of the Union. But even if rule 71 is to be treated as making the Branch an agent of the Union, the rule must be construed as authorizing the Branch to settle local disputes by legal, not illegal, methods; and no act of the agent can impose on the principal criminal liability for breach of the award unless the Union itself he proved to take part in or authorize the commission of the breach (Chisholm v Doulton (1889) 22 OQBD, 736; Roberts v. Woodward (13890) 25 QBD, 412: Emary v. Nolloth (1903) 2 KB, 264)." Lastly, Starke J. said (at 315-316): +e Tyee eye yo re ewe " a i rire . oe 31. "The relation of the Union and the Branches under these rules is not very clear, but they do not, in my opinion, constituta tha Branches the Union for local purposes, nor giva them any powec to commit or bind the Union or cther members of the Union by their resolutions (Waterside Woekers' Federation of Australia v. Burgess Brothers Ltd. (1916) 21 CLR 129; _Denaby and Cadeby Main Collierias Ltd. v. Yorksnire Miners' Association (1906) AC, 384; Smithies v. National Association of Operative Plasterers (1909) 1 KB, 310). The Branches have, no doubt, some powers of self-government with respect to local affairs, but those powers belong to them as independent units and not as representatives or agents of the whole Union." It may be noted that, in that case, Isaacs and Rich JJ. also said (at 308) that "se. mo Court can act on mere suspicion, particularly when the consequences are of a penal nature." Mr. Jolson referred to a large number of the rules of the respondent Society (the Federal Rules) and of the rules of the Victorian Branch (the Branch Rules). It is not necessary to refer to all of them. He contended that, on a fair construction of the rules as a whole:- "J... in matters of federal union policy the Victorian Branch and any person purporting to act in furtherance of that policy, is doing so as agent of the federal organisation and no real distinction can be drawn between the Victorian Branch and the Federal organisation..." He pointed out that Federal Rule 7(A)(1) provided that the "supreme governing authority of the organisation shall be the Federal Council ..." and that that council had power under Federal Rule 7(B)(a) "to establish Branches ... and generally to control Branches and the members thereof ...". He placed some emphasis upon Federal Rule 30(2) which included the following provision: - ee ae ey pee ee oe ee ay cm mt we ees a