ERPr Giz f $ x d cr aytey ettd Or oF a Fue Fl aw} oO a } tl Ut $4 6 wo sto " oe ' » foo a % Gur; + be am cy . a . " au L4 w 3 Hoon . it iy UO +f a o He ge r at rm uy majyp et i) aw HH ty a4 " ri Ey. ow u § p qt © ig ha ° wu u 'o Cio 4 oo [P) a n ' am Flom "i a rte at PAO Ts 4) 1 beets ' " Gs ix Sa ; ' a om yo I uy oc @ ¢ fae t E bled [A] Fon J Oye tt ak a) Un) Het wip Lt i" 5 Fy 0 oe Bote s . 3 ov Ww al ae | my Se + ri CAs I of Ly bb) 8 is Chie 2 wre) i e.ee oy of > a) Sane) et et ee Teneo i NSW SCUTY WALES DISTRICT RECISTRY Ne. G 244 of 1995 No. G 294 of Lass GENERAD DIVISsON ' BRAD COUT oF AUSTPALIA BETWEEN : 3 SALASTAN MEAT INDUSTRY EMPLOYEES UNTIN Agpellant , and MURGINBERRI STATION ETY LIMITED Respondent MINUTES OF CPDER COURT: Fox, Woodward and Buschet-: IT. DATE: 15 December 1386 PLACE: Sydney The appeats be dismissed with costs. HCTS: Settlement and entry of orders is dealt with in ¢.74 of the Federal Ceurt Rules.) IN THE iS CURT Cr AUSTRALTA ) ) No. G ) NEW SOUTH WALES DISTRICT REGISTRY Neo. G 244 of 1995 234 cf 13285 ~ we ~ ~ CEN SIVISTI N APPEAL Fe AD SCURT OF AUSTRALIA SETWEEN : AY ASTAN MEAT INDUSTRY EMOLOVESS CUNTON Apra@llant and TH PI STATTON ory crupren Raspondcent SOURT: Fox, Wecedward and Surchett JJ. Dare: 15 December 1396 PEACE: Sydney REASONS 32R ITUEGMENT THE court j this is an appeal against the impesiticn by the Court of a fine of 3100,990 fcr breach cf certain of 1¢2 orders. The Teourct ,tonstituted Sy Lockhart J) had found chat che arscellant Unicn "WAS instrumental im and yvrespcnsible Zsy establishing area Masntaining" a sickat tine at 'the vescondant s Mudginberr: aAmacteours. Th2 ma tJ ' srders sreviousizy made by Morling J. The substantial ground cf appeal which was relied uren by counsel for the appellant was that there was no evidence befor? Lockhart J upon which his Honcur could oroperly finc 'chat the Union .wtself was implicated in the maintenance cf the oicket Line at the ralevant times - that is to say between the service cf Morling J'3 order and the issuing cf che notice cof motion Sy the ct tt o s ir Ss i) » a ra oO rh cr raspondent seeking to punish the appellan order. a al + t rs rp) The facts which may be accerted for surpcsas a appeal are a3 follows. Since 10 May 1985 the rascondent's abattoir3 had been picketed by members oF the Prellant Union. This affactively orevented the abattorrs from crerating. ireaches respondent against the appellant anc interiscutcry inc-unctisns were obtained. Tne Unien waz later charged, convicted arc fSinad fcr contempt cof court for disckezying these orders. Eventually che mactar came on for trial before Merling J and un his 'udmment ne srderad that che Unicn and others "se vestrained by themgelves, therr servants and agents from .... maintaining any picket line at os in the vicinity of the Abattcirs when any such . picket line has as one of i163 surgpeses and would -». Be Likely to have the effact cf sreventing os Rindering the ordinary day 'oc day activities and cperationgs of the Abattsire business ...." sther thingz) "being in any way either directly or incirecti7 knowingly <sconcerned in or party tc engagement in the aforesaid Theze orders were made on 12 July 1935 and were sarved on the apoellant in Sydney on 15 duly. The statement of charge contained in Che notice of motion, which was filed on 22 July, alleged, among other things, that ""(@) Each of th Pespondents +: indirectly kmowingly concerned in o continuing maintenance of the saiit picke (fe note in pagzsging that the word 'continuing' in this charze appearz redundant; the word 'maintenance' itself, as used in this rontext, connotes continuity.) The only resecndants who were proceedac against when che motice cf motion was -ceturned were the Unisn and its Fedsaral Secretary, Mr Jack 9O'Tcole. Rockhart J found contempt cniz against the Unicen. Ye made that finding son 14 August 1355 ane w Be u o>) o et QQ a a3 ct iD w es ww fu it > nat the Unitn was invelved in the tb a ct re and Le +} '- a ro) i f] oO +) aw u ry a ry cf "ay rs) a 'D ct - fe) 3 maintenance ontil the time of Morling J'3 order - the signs erected at the site and che Participation and statements of Unicon officials during chat period combine tc make those points clear. What is contested is shat there was any evidence to implicate the Union itself after the orders of Morling J were served on the YJnion on LE July i995. At first s31ight there might seem to be gcmethine in the argument. Tne head office cf the Union is in Sydney, and the picket was thousands of kilometres away in a fairly ramot2 cart sf che Northern Territory. Most of the evidence put befere Lockhart J by the respondent to this appeal was concerned ts shew that the pickat was maintained, without variatisn, after Morling 7: J'3 orders were made and served. The evidence shcwed that cn at least one occasion well after service. namely on 20 Suly, a unicn official waz present at the picket Line. The evidence azaince Sisclosé orecisely what he was doing there. However thera wag one additicnal piece sf avidence whicth Lockhart J cbviously found persuasiv2 in reaching his conclusion M23 was chat, in a Darwin radio interview on 19 July, Mr lack ! a: the ccur3se sf <adsing so, the wntepviewer 3arad, "TIT take it { shere's mo chance that the picket at Mudsinberri wiil be lifted?" "And there's no way that the Federal pickes line as far a3 you know?" My Q'Toole sara, "In all the avidence that I've heard in the Court and statements madé in other venues we would expect the Commonwealth Meat Insrectcrs to respect an ACTU authorised picket line". There 15 a clear imelicaticn un these statements that the Unison was continuing * andorsa and promcte, 1£ not control, the maintenance of the picxeat line. It was argued on behalf of the Union that, because the Union rules were not tendered in the contempt proceedings, there Secrat wu ry's cocwer <5 make t- was no evidence of the Federa atatements binding the Union. It seems that 'the Unicn rules had been tandared before Morling J in the main proceecdinzz anc were being ccpied for appeal purvocoses at the time <cf che contempt proceedings - which of course were in the same matter. But in our view the rule3 were not a neceszarzy part of the procfs against the Unicn in any event. be a contempt. It was simply sne cart of the evidence against the Union. The Federal Secretary was sbvitualy 2. very genisy cificzal ef 'the Union, and he spoke with apparenw authority abcut 'the continuation of the picket Line and its sfficial stacus. any way by any evidence to suggest that the Unicon had not remained tn full control of the picket line at all relevant times; 2.5 the Onion had taken any steps at all to withdraw from the maintenance of the picket line or otherwise to comply with the Court's orders, zt eculd have informed Lockhart J of these steps. No such avidence was offared. Nor was objection taxen to the avidance of the radio interview, or any other evidence, on the grceund that it was not admissible against the Union. In our view it was clearl I oO 3d o fe} cw oO r bP ir) m=a Oo Cc Le | cry a iy) ray ir the cenclusion which he did. Even without che avidence of the yadis interview, the failure of the Unicon to offer any 2zplanaticn for the continuance of a picket line which it had pravicusiy been instrumental in establishing and maintaining would, in sur seinion, have sufficed te support m infere csazcnable dcubt, she Union was "directly or indirectly knowingly ccncerned"" in it3 masntenance. Cnly 'the Unien could ancw what ters, if any, it had taken to carry cut the Court': srter Th ta vadio interview provided additicnal cogent av ctate cf affairs. The only sther issue which <ccurnsel f t s 18 axrpellant attempted to razse was che failure cf <h ib S Lay Ose@cutor '29 tander formally the order of Morling J on which the finding cf sontemcr was Laged, The first answer to this soint 2.3 that 1c was not vaised by the notice cf apreal, and no amendment was scught. The ground of appeal said ts covar the submis3isn 7:3 thas. "There was no evidence on which such decision Crthat the Apsellant was in contempt of the orders of Morling J] cculd reasonably have seen made". In our view this is not gufficiant to cover an arzsumeant that the orders of Morling J had not been soroperly oreved. In any event, the soint has no substance. Tt was not yaised before Lockhart J and, 1f it had 'been, the alleged defect could readily have been cured. A photocopy of 'che sealed order was conveniently before the Court as part of the material preving service. His Honcur was not at first able cr rt + i re) rs oO ss ' q +? n » t= zealed copy of the order in the volumincus Court file, and so he evelied on a photocopy handed up to him by ccunsel, anc chen a copy annexed to an affidavit of service, ¢9 show 'the carms sf che order. This was done without cbjection. Whether hiz Hersur later zishted an original sealec copy of the creer does not assear. Tn our opinion his Hencur waz entitled. in the assance of any cpjaection 'from the varties, 'to caly as he 2idiursn a srotocopy cf a duly sealed order sf the Csurt in crder ¢t2 astablish the contents of that order. Wi Tt fay a i) un fan aw I certify that this and the Semen praceding pages are a true and accurate copr sf the Reasons for Judgment herein of the Court ABsociate to The Yon Mr Justice Fox Dated: 15 December 1986 oO G uns aw i fcr the Respondent: On mM 42 os et cars for the eent "th is ata Tate of hearing: Date judgment delivered: id 43 ¢C C Simesen Me3srs Tress Tecks & Maddox; city agents for Messrs Mildren Sylvester & Partners My IDF Callinarn OC with Mr DA Cowdrs7 Messrs Maurice? May & Co Sydney, 24 Cctober 1295