JUDGMENT No. J) 7 BR IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) ) ) GENERAL DIVISION No. Gl61 of 1987 No. G162 of 1987 No. G163 of 1987 IO. G164 of 1987 AAINCIFAL Rao UGTRALAS E - 2 MAR 1988 FRDERAL COURT OF; ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA Appellant JOHN HOLLAND CONSTRUCTIONS PTY. LIMITED Respondent THE PLUMBERS AND GASFITTERS! EMPLOYEES UNION OF AUSTRALIA Appellant BARCLAY BROS. PTY. LIMITED Respondent THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA Appellant JENNINGS CONSTRUCTION LIMITED Respondent THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA Appellant SABEMO PTY. LIMITED Respondent 2. THE PLUMBERS AND GASFITTERS'' EMPLOYEES UNION OF AUSTRALIA No. G165 of 1987 Appellant LEIGHTON CONTRACTORS PTY. LIMITED Respondent THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA Appellant No. G166 of 1987 CONCRETE CONSTRUCTIONS PTY. LIMITED AND CONCRETE CONSTRUCTIONS (N.S.W.) PTY. LIMITED Respondents THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA No. G167 of 1987 Appellant WHITE INDUSTRIES LIMITED Respondent THE PLUMBERS AND GASFITTERS' EMPLOYEES UNION OF AUSTRALIA No. G168 of 1987 Appellant CIVIL & CIVIC PTY LIMITED Respondent CORAM: FISHER, LOCKHART and MORLING JJ. DATED: 2 MARCH 1988 3. REASONS FOR JUDGMENT THE COURT: These are appeals from a judgment of a judge of the Court (Wilcox J.) imposing monetary penalties on the Plumbers and Gasfitters Employees' Union of Australia ("the Union") for contempt of interlocutory orders made by him in proceedings brought against the Union under s.45 D of the Trade Practices Act 1977. The proceedings giving rise to the interlocutory orders are reported - see Concrete Constructions Pty. Limited & Ors. v Plumbers and Gasfitters Employees' Union of Australia (1987) 71 ALR 501. The proceedings were brought by a number of companies engaged in the building construction industry. It will be convenient to refer to the companies in these reasons as "the applicants". The proceedings arose out of a decision by the Union, taken on 23 July 1986, "to embark on a national campaign in the building and construction industry for improvements to wages, conditions, hours and other terms of employment". On 13 March 1987 Wilcox J. made orders in the proceedings instituted by one of the applicants, Concrete Constructions Pty. Limited, as follows: "1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Pty Limited, Wormald International (Australia) Pty Limited or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant known as Grosvenor Place, at corner George and Grosvenor Streets, Sydney. 2. The first respondent by itself, its servants and agents, and the second respondent be restrained from: (a) aiding, abetting, counselling Or procuring any person or persons to engage in the conduct referred to in order (1); (b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct; (c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out' the aforesaid conduct; or (da) conspiring with any other person or persons to engage in the aforesaid conduct. 3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1). The orders made in proceedings brought by other applicants (which were heard at the same time as_ the proceedings brought by Concrete Constructions) followed the same form with appropriate changes to meet the facts of the particular cases. Applications for the stay of order 3 in each case were granted by the High Court in proceedings in which the appellant sought orders nisi for prohibition and certiorari in respect of all the orders made by Wilcox J. It 5. appears that the application in the High Court was not further prosecuted and the other orders made by his Honour remained in force. Wilcox J. made a total of 14 sets of orders, each set being made in relation to a particular building s1te on which one of the applicants was carrying out building work. The applicants claimed in the contempt proceedings that the Union was in contempt of orders 1 and 2 as applicable to the particular building site to which the orders' related. Subsequent to the making of the orders the operation of order 3 was suspended in each case. In accordance with Order 40 Rules 5 and 6 of the Federal Court Rules the applications to punish the Union for its alleged contempt was made by motion on notice and in each case a statement of the charge specifying the alleged contempt was filed with the notice of motion. The form of the charge in the Concrete Constructions matter was as follows: "At the date of the filing of this Notice of Motion the First Respondent has: - (i) Continued to maintain, give effect to and enforce bans on the provision of goods or services by Matthew Hall Pty. Limited, Wormald International (Australia) Pty. Limited or Nisbet & Durney (Contracting) Pty. Limited to or for the building being constructed by the Applicant known as Grosvenor Place. {i1) {a) aided, abetted, counselled and/or procured a person or 6. persons to engage in the conduct referred to in (i) hereof (b) induced or attempted to induce a person or persons by threat, promise or otherwise to engage in the conduct referred to in (i) hereof; (c) directly or indirectly been knowingly concerned or party to an agreement to carry out the conduct referred to in (i) hereof; (da) conspired with a person or persons to engage in the conduct referred to in (i) hereof. PARTICULARS OF CHARGE The employees listed below have refused to return to their duties for the reason that the First Respondent has: (a) refused to inform such undermentioned employees that the bans and/or work limitations at the building known as Grosvenor Place, at corner George and Grosvenor Streets, Sydney have been lifted. (b) Refused to give permission to such employees to resume their duties and to undertake the work which was the subject of the bans and work limitations found by His Honour Mr. Justice Wilcox to have been in force as at 13th March, 1987. (c) Informed certain of such employees that no work which is the subject of bans and/or work limitations at the Grosvenor Place site may be performed until a meeting of the First Respondent is held and a resolution adopted to lift such bans and/or work limitations at the said site. The employees hereinbefore referred to:-" There followed a list of 13 names. Similar particulars of charge were given in the John Holland matter. 7. In a number of other cases, the statements of the charges were in substantially the same form, but they were supported by more extensive particulars, which included the following: "(i) The First Respondent failed to take any effective steps to inform its members that the bans were lifted in circumstances where such failure was likely to and did communicate that the bans were to be maintained. (ii) The First Respondent failed to inform its members that the First Respondent would not take any adverse action against those members who performed work previously the subject of the bans. (iii) The First Respondent communicated to certain members of the First Respondent who were employed by sub-contractors to the Applicant including Matthew Hall Mechanical and Electrical Engineering Pty. Limited that the bans were to be maintained or that there was no change in the situation. (iv) eee (v) eee (vi) The First Respondent failed to take any effect- ive steps to have the bans removed including failing to propose or have passed at a meeting or meetings of members of the First Respondent a resolution removing the bans and failing to Propose or have passed at a meeting of the Committee of Management a resolution removing the bans or calling for or recommending their removal. (vii) ... (viii) ... (ix) ee" The trial judge found that, in each case, the charge of contempt had been established. He was of the opinion that the allegation in para. (i) of each charge was made out. 8. Accordingly, he found 1t unnecessary to determine whether the allegations in para. (ii) of the charges had been made out. He fined the Union $20,000 on each of the 14 charges, and a further $10,000 for each day upon which there were continuing breaches of the orders. The Union contends that none of the orders should have been made and that, in any event, the penalties imposed were too severe. The principal submission relied upon in support of the appeal was that the trial judge was in error in deciding, as he did, that order 1 in each case required the Union to take positive steps to avoid being in contempt of it. It was submitted that the only obligation on the Union to take positive action under the orders made on 13 March was the obligation to deliver the letters referred to in order 3 and that, since the operation of this order was suspended after it was made, there was no continuing obligation on the Union to take positive action of any kind. It was further submitted that the references in that order to "bans" was a reference to bans imposed by members of the Union working at the particular building sites, and not to bans imposed by the Union itself. It was argued that the evidence before Wilcox J. did not establish breaches by the Union of any of the several orders since it was not shown that the Union had taken any positive steps to implement or enforce the bans imposed by the members of the Union. The submissions were developed by an analysis of the reasons given by the trial judge for the purpose of determining the nature and extent of the obligations cast upon the Union by order 1. Particular reliance was placed upon the terms of order 3 and the passages in the reasons where reference was made to decisions taken by members of the Union to impose bans. With all respect to the detailed and careful submissions put to the Court on this branch of the appellant's argument, we think they are without substance. Order 1 in each case referred to "any ban". There was compelling evidence in the injunction proceedings that the Union had imposed bans on the provision of goods and services by sub-contractors constructing buildings for the applicants. Indeed, the minutes of the meeting of the Federal Executive of the Union held on 18 August, 1986 put this matter beyond doubt. The resolution passed at that meeting read, in part, as follows: "The campaign be co-ordinated centrally and Comrades Rutherford and Davis be authorized to maintain a central record of the bans imposed by the Union throughout the course of the dispute." (emphasis added) It is true that subsequent to 18 August members of the Union working on the construction sites held meetings at which they agreed to impose bans. In one sense, those bans may be regarded as different from and independent of the bans imposed by the Union. But even if they are so regarded, they did not replace the bans already imposed by the Union and referred to in the resolution. In truth, the agreement of the unionists 10. to impose bans amounted to no more than an adoption and implementation of the bans already decided upon by the Union. The Rules of the Union obliged its members to observe decisions of the Federal Executive. No doubt there are cases where a clear distinction can be drawn between industrial action taken by a union and by its members. The Mudginberri Case (1985) 9 FCR 425 was one such case. In that case the decision of the union to impose a picket line was opposed by its members working at the premises affected by the picket. However, in the present case where there was unanimity of purpose between the Union and its members, any distinction between the bans imposed by the Union and the bans imposed by its members tends to become illusory and lacks industrial reality. Acceptance of the Union's argument that bans were imposed by the members of the Union does not lead to the conclusion that the Union itself did not impose bans. The evidence established that the Union and its members had a community of purpose which they sought to achieve by the imposition of independent and concurrent bans. Cf. The King and The Attorney-General of the Commonwealth v. Associated Northern Collieries (1911) 14 CLR 387 at p.400; Australian Commonwealth Shipping Board v. Federal Seamen's Union of Australasia (1925) 35 CLR 462 at p.490 and Williams v Hursey (1959) 103 CLR 30 at p.81-82. Whether the bans referred to in order 1 be taken as referring to bans imposed by the Union or bans imposed by its members, there was ample justification for his Honour reaching 11. the conclusion that the Union was maintaining those bans. It was conceded by Mr Crawford, the General Secretary of the Union, that no steps were taken by the Union to notify its members that it no longer sought to maintain or enforce the bans. The Union was correctly described by his Honour as "the chief support and prop" of the bans. He was of the opinion, correctly in our view, that the requirement of order 1 was that the prop be taken away, leaving the individual unionists to make their own decisions free of any constraint imposed by Union directives or policies. We agree with his Honour's observation that, to remove the prop, a positive step was required, i.e. the taking of some positive step by the Union to notify its members that it no longer sought to maintain or enforce the bans. By failing to resolve to lift 1ts own bans, the Union effectively maintained those bans. This conduct was of itself a breach of order 1. Moreover, since the Union's Rules made it an offence for a member to disobey a decision of the Federal Executive, and since the Executive had decided to embark upon a campaign which included the imposition of bans, the members were not in a position to lift their own bans because to have done so would have been tantamount to disobedience of the ee Federal Executive's decision. Thus, by failing to resolve to lift its own bans, the Union effectively maintained and gave effect to its members' bans. There was evidence on the hearing of the contempt proceedings that Mr Batchelor, the Assistant General Secretary 12. of the New South Wales Branch of the Union, had made statements which were consistent only with the continuance by the Union of its campaign, including the maintenance of the bans referred to in the interlocutory orders. These statements were made to representatives of the media after the making of the orders on 13 March 1987. We think Wilcox J. was entitled to infer from these statements that the Union did not intend to, and would not, comply with the orders. We do not agree with the submission that Mr Batchelor's statements were intended to refer only to the matter referred to in order 3. We also think the inference was clearly open that Mr Batchelor was speaking as the spokesman for the Union and with its authority. Counsel for the Union challenged the admissibility of other evidence tendered for the purpose of proving that the Union was maintaining and enforcing the bans after the making of the interlocutory orders. Since we are of the opinion that there was ample other evidence to establish the breaches of order 1 we do not find it necessary to determine whether this further evidence was admissible. It was submitted that order 1 is framed in such uncertain terms that 1t 1S incapable of giving rise to a finding of contempt. Australian Consolidated Press v Morgan (1965) 112 CLR 483 at 515-516 and cases there cited were relied upon. We do not think that order 1 is uncertain. It may be conceded that it does not indicate to the Union what 1t must do to effect compliance with it. But, as Wilcox J. pointed out, there is a fundamental difference between an order which is 13. uncertain and an order which, being certain in its meaning, leaves to the addressee a choice as to the manner of compliance: see Attorney-General v Walthamstow Irvine Council (1895) 11 Tames L.R. 533. Order 1 specified with precision the conduct which was enjoined, i.e. the maintenance, giving effect to and enforcing of any ban. It was further submitted that the notices of motion did not contain proper statements of the charges and did not state with sufficient particularity the allegations of contempt and thereby failed to meet the standards required by the authorities as embodied in 0.40 r.36 of the Federal Court Rules. It 1s well established that no person can be punished for contempt of court unless the charge is distinctly stated and a proper opportunity of answering it given to him: Coward v Stapleton (1953) 90 CLR 573 at 579-580; Doyle v The Commonwealth (1985) 156 CLR 510 at 516-517; Australian Building Construction Employees and Builders Labourers' Federation v Minister for Industrial Relations (1982) 43 ALR 189 per Smithers J. at 191-192, per Evatt and Deane JJ. at 208-209 and 211-212. In each matter the essence of the charge is that the Union committed conduct which it had been ordered not to commit. We agree with the trial Judge that, so far as unions are concerned, 1t is difficult to do more than to say that no action was taken and that this is sufficient. Allegations of positive conduct by the Union in contravention of the Court's orders were stated in the particulars sufficiently, precisely 14. and clearly to inform the Union of the charges and to give ita proper opportunity to answer them. We think each charge was stated with sufficient precision, and was supported by adequate particulars. We should, however, make some reference to the particulars given of the charge in the Concrete Constructions and John Holland matters. It was submitted that particular (a) was defective in that it could not be said that the Union refused to inform employees that bans had been lifted when the bans had not in fact been lifted. We agree that the form in which this particular is cast is a little curious, but we think it sufficiently conveyed to the Union the substance of the allegation being made. In effect, it conveyed to the Union that what was alleged was that it had decided not to lift the relevant bans and, accordingly, not to inform the men on the job of any change in the Union's attitude. We think that, taken as a whole, the particulars left the Union in no doubt as to what was alleged against it. Counsel for the Union argued that the charges in the Concrete Constructions and John Holland matters were bad for duplicity. As we understand this submission, it is based upon the proposition that order 1 enjoined the Union from maintaining, giving effect to, and enforcing the bans and that separate charges should have been brought in respect of the Union's alleged maintenance, giving effect to and enforcement of the bans. We agree with the reasons given by the trial judge for rejecting this submission. As he observed, a proceeding for civil contempt is not a criminal prosecution and the rules relating to duplicitous pleading have no place in the 15. law of contempt. See Harmsworth v. Harmsworth [1987] 1 WLR 1676 per Woolf L.J. at p.1686. The essence of the charge against the Union was that it failed to comply with the obligations imposed on it by order 1. The form of the charge made it plain that the allegation was of failure to comply with order 1, and adequate particulars were given of that failure. No question of duplicity arose. It was finally submitted that the fines imposed were excessive. We do not agree. We think that the inference was clearly open to Wilcox J. that the Union's conduct amounted to calculated disobedience of the Court's orders. The breaches of the orders were serious and continuing. In those circumstances it was appropriate for him to impose significant monetary penalties in respect of the contraventions which had already occurred and, in addition, to subject the Union to significant daily penalties to secure future compliance with the orders. We can find no error in the approach taken by his Honour to the question of penalty, nor in the amounts of the penalties he imposed. The appeals should be dismissed with costs. I certify that this and_ the fourteen (14) preceding pages are a true copy of the Reasons for Judgment of the Court. Associate: WA ov Date: 2 March 1988 16. Counsel for - . The Plumbers and Gasfitters' Employees Union of Australia: Mr R. Kenzie Q.C. with Mr M. Moore instructed by: Messrs R.L. Whyburn & Associates Counsel for - John Holland Constructions Pty. Limited: Barclay Bros. Pty. Limited: Jennings Construction Limited: Sabemo Pty. Limited: Leighton Contractors Pty. Limited: Concrete Constructions Pty. Limited and Concrete Constructions (N.S.W.) Pty. Limited: . White Industries Limited: . Civil & Civic Pty. Limited: Mr J.L. Trew Q.C. with Mr. D.A. Cowdroy instructed by - John Holland Constructions Pty. Limited: Westgarth Baldick . Barclay Bros. Pty. Limited: Colin Biggers & Paisley . Jennings Construction Limited: Colin Biggers & Paisley . Sabemo Pty. Limited: Allen Allen & Hemsley : Leighton Contractors Pty. Limited: Allen Allen & Hemsley Concrete Constructions Pty. Limited and Concrete Constructions (N.S.W.) Pty. Limited: Westgarth Baldick . White Industries Limited: Freehill Hollingdale & Page . Civil & Civic Pty. Limited: Freehill Hollingdale & Page Dates of Hearing: 10, 11, 12 February 1988 Date of Judgment: 2 March 1988