Galinac, Vlado v Liberty Meats Exports Pty Ltd [1997] FCA 700

FEDERAL COURT OF AUSTRALIA PRACTICE AND PROCEDURE - CONTEMPT OF COURT - contempt of reinstatement order of judicial registrar - acts constituting alleged contempt done on incorrect legal advice - whether contempt technical or wilful Federal Court Rules o. 40 VLADO GALINAC v LIBERTY MEATS EXPORTS PTY LTD VI 2567 of 1996

MARSHALL J

MELBOURNE

11 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 2567 of 1996 ) GENERAL DIVISION )

BETWEEN: VLADO GALINAC

Applicant

AND: LIBERTY MEAT EXPORTS (AUST) PTY LTD

Respondent

JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 11 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The respondent has committed a contempt of Court by refusing to comply with orders of Judicial Registrar Parkinson of 19 June 1997 on each of 23, 24, 25 and 26 June 1997. 2. The respondent is fined $20,000 in respect of such breach. 3. The fine is to be paid to the Victorian District Registry of the Court on or before 4 pm on 11 August 1997. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 2567 of 1996 ) GENERAL DIVISION )

BETWEEN: VLADO GALINAC

Applicant

AND: LIBERTY MEATS EXPORTS (AUST) PTY LTD

Respondent

JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 11 JULY 1997

EX TEMPORE REASONS FOR JUDGMENT

AS REVISED FROM THE TRANSCRIPT By notice of motion dated 4 July 1997 the applicant applied for the respondent to be punished for contempt of Court under order 40 of the Federal Court rules for failure to comply with the orders made by Judicial Registrar Parkinson on 19 June 1997. The Court was informed that a notice of motion in identical terms was filed on 24 June 1997 and served, but that that notice of motion was not accompanied by a statement of charge as required by order 40 of the rules of Court. That deficiency was remedied by the service of the second notice of motion which was accompanied by a statement of charge. The second notice of motion and statement of charge were served on the solicitors for the respondent and not on the respondent personally as required by o. 40 r. 8. This was because after the first notice of motion was served upon the respondent personally its solicitors requested that any further material in relation to the matter be served at its offices and not on the respondent. Having regard to that advice the solicitors for the applicant served the 4 July notice of motion and affidavits in support and the statement of charge accompanying that notice of motion on the respondent's solicitors. Mr Hands has taken the point that that does not constitute personal service on the company. I do not agree with that submission. I am of the view that the company's solicitors in advising the solicitors for the applicant that service of any further documentation in the matter must be on those solicitors rather than the company, involved the solicitors in acting as agents of the company in respect to the method of service and that in those circumstances such service was personal service. If I am wrong about that I would have been prepared to order in the circumstances that personal service be dispensed with and that service on the solicitors be good service because of the real merits and justice of the situation where a solicitor has advised another solicitor to send further documentation to it and not to the respondent itself. The question then arises, the matter therefore being properly before the Court, as to whether the Court should find the applicant in contempt in that it disobeyed the order of Judicial Registrar Parkinson of 19 June 1997 and disobeyed such order in wilful circumstances. The order of Judicial Registrar Parkinson is set out in my separate judgment on the question of stay. The evidence before the Court indicates that on 23 June 1997 Mr Boehm, who was the relevant director of the company and who acted as the company's agent all through the relevant events informed the applicant that he was not able to attend work because the company had, in the words of Mr Boehm, "appealed the decision of the Judicial Registrar". It appears that Mr Boehm acted on advice from the company's solicitor. It appears that the advice was that the very act of seeking a review operated to stay the decision of the Judicial Registrar. This was incorrect advice but the fact that incorrect advice was given in relation to the issue as the High Court found in AMIEU v Mudginberri Station Pty Limited (1996) 161 CLR 98, 112 does not exculpate the respondent. See also Windsurfing International Inc v Sailboards Australia Pty Ltd & Anor (1986) 19 FCR 110 at 116. Although the notice of motion does not deal with the question of Mr Guy's involvement, being the solicitor for the respondent, the statement of charge does. I earlier ruled that I was not prepared to treat the notice of motion as dealing with the contempt charge against Mr Guy and having regard to that ruling it is inappropriate that I make any other comment in relation to the nature of his advice, the circumstances of it or the relevance of his conduct. On 24 June 1997 Mr Boehm told the applicant that he could not start work and that there was no job for him. Again the applicant was prevented from performing his ordinary duties on that day having attended for work in accordance with the order of the Judicial Registrar. On 25 June 1997 Mr Boehm caused the applicant to be locked out of the office at the workplace and refused to speak to him. The applicant was again prevented from performing his ordinary duties on that day. At this stage almost a week had transpired since the Judicial Registrar had delivered judgment and made her orders. On 26 June 1997 Mr Boehm told the applicant that there were no light duty jobs at the workplace and the uncontradicted evidence is that he said: "I will see you next year". The applicant was again prevented from performing his duties on 26 June 1997. Further affidavit material from Mr Boehm was filed after the filing of affidavit material that had been proffered to support the statement of charge for contempt. The answering material seems to confirm the conduct alleged of the respondent by the applicant. For example, at paragraph 8 of the material it is suggested that the respondent told the applicant that there were no light duties available. And at paragraph 11 the following is said: "It had been made clear to the applicant that he would not be reinstated pending the determination of the review of the decision of the Judicial Registrar." At paragraph 13 of that affidavit Mr Boehm states that the applicant demanded that he be reinstated on 30 June 1997 on a further visit to the office and he again told the applicant that the respondent's position had not changed. It is surprising that such a view can still be maintained so blatantly in the face of contempt proceedings which had by then been foreshadowed. In the circumstances the Court is in a position where an employee invoked the jurisdiction of the Industrial Relations Court of Australia in respect to what he alleged was the unlawful termination of his employment. He did so successfully and sought to implement his victory in real terms and was treated appallingly and arrogantly by management. In the circumstances I find the respondent guilty of contempt as charged in the statement of charge and I find particularly that the respondent, through its agent Rudolf Boehm, breached the orders made on 19 June 1997 by Judicial Registrar Parkinson by deliberately refusing to allow Vlado Galinac to perform his duties in his employment with Liberty Meats on 23, 24, 25 and 26 June 1997. The respondent should consider itself fortunate that a breach on 30 June 1997 was not also pleaded. On the question of penalty with respect to the contempt of Court which the Court has found, Ms Doyle, on behalf of the applicant, requested that the Court make orders including an order which would involve the payment of money by the respondent to the applicant to reimburse him for the wages lost for the period between the order and today in respect to its refusal to allow him to perform work. Assuming that the Court had the power to make such an order it is not an order that I believe is appropriate in instant circumstances. It is open for the applicant on the review to urge the judge conducting the review in the event that that judge finds that reinstatement is an appropriate remedy to order that remuneration lost be paid and that remuneration lost exceeds the figure ordered by the Judicial Registrar. It is also open for the applicant's counsel to submit that interest should be paid on any such increased amount. This leads the Court to consider the question of the fine that should be imposed upon the respondent in respect to its contempt. The relevant four days as referred to in the statement of charge have already been referred to by me in this judgment. I do not accept the submission of Mr Hands that the breach was technical. I believe it was a deliberate contempt. I believe it was arrogant, high-handed and demeaning to the worker involved, the applicant, Mr Vlado Galinac. He was not treated in the dignified way in which a worker in a civilised environment should expect to be treated by an employer. Having regard to the submissions put by Ms Doyle and having regard to the range of penalties in respect to daily fines referred to by the High Court in Mudginberri it is my view that it is appropriate to order a penalty of $5000 in respect to each day, the 23rd, 24th, 25th and 26 June respectively amounting to a total penalty of $20,000. I order further that the penalty so imposed be paid to the Federal Court of Australia at the Victoria District Registry on or before 4 pm on 11 August 1997.