FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 CONTEMPT – order restraining "strike action" by a union – whether the union complied with the order – meaning of "immediately" – standard of proof required for a contempt – role of particulars in a statement of charge – whether the particulars supported the alleged contempt. Workplace Relations Act 1996 (Cth) s 127 Dorsman v Nichol (1978) 20 ALR 231 at 237 referred to Measures v McFadyen (1910) 11 CLR 723 at 736 referred to Kent Free Press v NGA [1987] IRLR 267 referred to BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union (2000) 102 IR 275 cited Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 at 95 cited United Steelworkers of America Local 663 v Anaconda Company (Canada) Ltd (1969) 67 WWR 744 cited Austin Rover Group Ltd v AUEW (TASS) [1985] IRLR 162 cited Re Distillery, Brewery Union 604 v British Columbia Distillery (1975) 57 DLR (3rd) 752 cited Adam Phones Ltd v Goldschmidt [1999] 4 All ER 486 per Jacob Jat 495 cited Witham v Holloway (1995) 183 CLR 525 cited Microsoft Corporation v Marks (1996) 69 FCR 117 cited Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 at 49 cited Doyle v The Commonwealth (1985) 156 CLR 510 at 516 cited Coward v Stapleton (1953) 90 CLR 573 at 579-580 cited Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 73 cited Cotroni v Quebec Police Commission (1977) 80 DLR (3rd) 490 at 497 cited Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683 cited Australian Building Construction Employees' and Builders Labourers' Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 at 206-207 cited In re Bramblevale Ltd [1970] 1 Ch 128 at 137 cited AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 cited R v Booth [1983] 1 VR 39 cited Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 cited Australian Industry Group v Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union [2000] FCA 629 considered The Plumbers and Gasfitters Employees' Union of Australia v John Holland Constructions Pty Limited (1988) 10 ATPR 40-849 cited Seaward v Paterson (1897) 1 Ch 545 cited Esso Australia Resources Ltd v Commissioner of Taxation (1998) 84 FCR 541 cited Jones v Dunkel (1959) 101 CLR 298 considered RPS v The Queen (2000) 199 CLR 620 cited Livesey v New South Wales Bar Association (1983) 151 CLR 288 followed Re JRL, ex parte CJL (1986) 161 CLR 342 cited Johnson v Johnson (2000) 201 CRL 488 considered Hanneberry v Legal Ombudsman [1998] VSC 142 cited R v Gray [1977] VR 225 cited Cho Hung Yam (1991) 55 A Crim R 116 cited North Australian Aboriginal Legal Aid Services Inc v Bradley [2001] FCA 908 considered Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1997) 72 FCR 151 cited Borrie & Lowe's Law of Contempt (2nd ed. 1983 at p.379) Lightman QC A Trade Union in Chains: Scargill Unbound – The Legal Constraints of Receivership and Sequestration (1987) CLP 25, 27-28 Lord Wedderburn Contempt of Court: Vicarious Liability of Complaints and Unions (1992) 21 Ind. L.J. 51, 53-56 O'Regan Contempt of Court and the Enforcement of Labour Injunctions (1991) 54 MLR 385, 393-394 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP STEEL (AIS) PTY LTD (ACN 000 019 625) Q1 OF 2001; Q68 OF 2001 LEE, FINN AND MERKEL JJ 12 DECEMBER 2001 PERTH (HEARD IN BRISBANE) IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 1 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION APPELLANT AND: BHP STEEL (AIS) PTY LIMITED (ACN 000 019 625) RESPONDENT JUDGE: LEE, FINN AND MERKEL JJ DATE OF ORDER: 12 DECEMBER 2001 WHERE MADE: PERTH (HEARD IN BRISBANE) THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. The declaration made by Kiefel Jon 15 December 2000 be varied by deleting therefrom all words after the word "by" and inserting in their stead the following: " 'failing to immediately cease strike action, namely, the authorizing of its members to stop performing work at the applicant's coal mines in New South Wales.' " 3. Otherwise, the appeal be dismissed. 4 There be no order as to the costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 68 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION APPELLANT AND: BHP STEEL (AIS) PTY LIMITED (ACN 000 019 625) RESPONDENT JUDGE: LEE, FINN AND MERKEL JJ DATE OF ORDER: 12 DECEMBER 2001 WHERE MADE: PERTH (HEARD IN BRISBANE) THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by Kiefel J on 30 March 2001 be set aside. 3. The matter be remitted to her Honour for re-determination of the questions of penalty and costs. 4. The respondent pay the appellant's costs of and incidental to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 1 OF 2001 Q 68 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION APPELLANT AND: BHP STEEL (AIS) PTY LIMITED (ACN 000 019 625) RESPONDENT JUDGE: LEE, FINN AND MERKEL JJ DATE: 12 DECEMBER 2001 PLACE: PERTH (HEARD IN BRISBANE) REASONS FOR JUDGMENT LEE, FINN JJ: 1 The respondent ("BHP Steel") applied to the Court for a declaration that the appellant ("the CFMEU") had committed a contempt of the Court and for the imposition of a penalty in respect of the alleged contempt. BHP Steel alleged that the CFMEU disobeyed an order of the Court made on 7 February 2000 ("the Order"). The application was heard by the Judge (Kiefel J) who had made the Order. On 15 December 2000 her Honour declared that the CFMEU was guilty of contempt of the Court "by its conduct in breaching the Order made against it ... by continuing strike action and authorising its members to stop performing work and procuring and authorising its members to take further strike action". On 30 March 2001 her Honour imposed a fine of $200,000 for that contempt and ordered the CFMEU to pay BHP Steel's costs "of the whole of the proceedings" on an indemnity basis. In these two appeals the CFMEU seeks to have the declaration, and the orders for the payment of a fine and costs, set aside. 2 Members of the CFMEU were employed by BHP Steel at coal mines in Queensland ("the Queensland mines") and New South Wales ("the New South Wales mines"). Prior to February 2000 an industrial issue had arisen between the CFMEU and BHP Steel's parent company, ("BHP"), as to the price BHP should obtain for coal produced by BHP Steel and exported by BHP. In 1995 members of the CFMEU authorised the Central Executive ("the Executive") of the Mining and Energy Division ("the Division") of the CFMEU, to call for a stoppage of work for a period of up to seven days in relation to that issue, at the discretion of the Executive. 3 On 7 February 2000 the CFMEU became aware that BHP had agreed to reduce the price of the coal it exported and at about 5.00 pm on that day (all times stated herein refer to Australian Eastern Daylight Saving Time) the Executive issued a media release that the CFMEU would direct its members to "strike" for 24 hours from the commencement of the "night-shift" on that day, i.e. from 7.00 pm at the Queensland mines and from 11.00 pm at the New Sought Wales mines. At about the same time the CFMEU gave notice of the direction to members' representatives at the mines ("the Lodge Officers"). The Lodge Officers were unpaid officials elected by members at each mine site to represent them in issues arising at the respective mines. 4 At about 5:30 pm BHP Steel obtained an order from the Australian Industrial Relations Commission ("the Commission") under s 127 of the Workplace Relations Act 1996 (Cth) ("the Act") which directed that: "The [CFMEU] shall not in relation to the work [performed at the Queensland and New South Wales mines] for the purposes, wholly or partly, of any dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices: (a) take or continue strike action; (b) commence or instigate any ban on employees attending for and performing work in accordance with…applicable awards or certified agreements…; (c) direct, procure, advise or authorise union members or other employees to stop performing work in accordance with…applicable awards or certified agreements…" 5 Later that day BHP Steel applied to the Court for an injunction pursuant to s 127(6) of the Act on the ground of a contravention, or a proposed contravention, by the CFMEU of the Commission's order. 6 The Order granting the injunction was made at about 9.50 pm on 7 February 2000. The application was heard, and the Order made, ex parte. In the contempt proceeding before her Honour the CFMEU admitted that a copy of the Order had been sent by facsimile transmission to the national office of the Division at about 11.22 pm, but the time or times at which officers of the Executive actually received notice of the terms of the Order remained in issue. 7 The relevant paragraphs of the Order provided that: "1. The [CFMEU]...whether by [its] servants or agents or otherwise howsoever immediately cease any of the following with respect to… [BHP Steel's] coal mines [in Queensland and New South Wales]: (a) strike action; (b) any ban on employees attending for and performing work in accordance with the applicable awards or certified agreements ...; or (c) directing, procuring or authorising members of the [CFMEU] or other employees of [BHP Steel] to stop performing work in accordance with the applicable awards or certified agreements…; for the purposes of any dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices, until 4pm Wednesday 9 February 2000 or further earlier order. 2. The [CFMEU]...whether by [its] servants or agents or otherwise howsoever be restrained from engaging in the following with respect to [BHP Steel's] coal mines [in Queensland and New South Wales]: (a) taking or continuing strike action; (b) commencing or continuing any ban on employees attending for and performing work in accordance with the applicable awards or certified agreements...; (c) directing, procuring, advising or authorising members of the [CFMEU] or other employees of [BHP Steel] to stop performing work in accordance with the applicable awards or certified agreements...; for the purposes of any dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices, until 4pm Wednesday 9 February 2000 or further earlier order." 8 The meaning of the word "immediately" as used in different contexts has been the subject of judicial consideration. In Dorsman v Nichol (1978) 20 ALR 231 Forster CJ said (at 237): "There is a good deal of authority concerning the meaning of the word 'immediately' in contexts other than the one presently under consideration. 'It has already been decided and necessarily so that the words 'immediately afterwards' in the statute cannot be construed literally; and if you abandon the literal construction of the words, what can you substitute but 'within a reasonable time' especially as an endorsement of the certificate eo instanti can be of no necessity whatever' (Page v Pearce (1841) 8 M & W 677, per Abinger CB at 678). 'There are, however, many cases in which it has been held that the word 'immediate' occurring in a statute is not to be construed in its strict sense 'on the instant' but that it means with reasonable promptness having regard to all the circumstances of a particular case' (R v Aston (1850) 19 LJMC 236, per Wightman J at 239). 'It is impossible to lay down any hard and fast rule as to what is the meaning of the word 'immediately' in all cases. The words 'forthwith' and 'immediately' have the same meaning. They are stronger than the expression 'within a reasonable time' and imply prompt, vigorous action without any delay and whether there has been such action is a question of fact having regard to the circumstances of the particular case' (R v Justices of Berkshire (1879) 4 QBD 469 per Cockburn CJ at 471). The last citation appears to differ from Page v Pearce,supra, and in so far as it does so Page v Pearce must be taken to have been overruled by that later case which is a decision of a Full Court of the Court of Queen's Bench. The two cases may be reconciled by paraphrasing Lord Cockburn to say that in most, if not all, circumstances a reasonable time implies prompt and vigorous action. In some situations ten days afterwards may be immediately and others one hour later might not be." 9 In Measures v McFadyen (1910) 11 CLR 723 Isaacs J said (at 736): " 'Forthwith' has been defined in several cases, and they are not altogether uniform, but the greater number and the most authoritative afford a clear idea of the meaning. In Ex parte Lamb; In re Southam [19 ChD 169 at 172, 173]Jessel M.R. and Lush L.J. pointed out that its meaning depends to a great degree upon the circumstances in which it is used. It is evident that a contract to forthwith deliver a ton of flour demands much more prompt performance than to forthwith construct an ironclad, and so the word cannot be said to have an invariable meaning, irrespective of the subject matter in connection with which it is used. ' 'Forthwith' of course means', says Bowen L.J. ' 'at once,' having regard to the circumstances of the case': Lowe v Fox [15 QBD 667 at 679] Sir JamesHannen thought it meant 'with as little delay as possible': Furber v Cobb[18 QBD 494 at 504], and similarlyin Roberts v Brett[11 HLC 337 at 355] Lord Chelmsford considered it meant 'without delay or loss of time.' In the Queen v Berkshire Justices Cockburn C.J.said:- 'The words 'forthwith' and 'immediately' have the same meaning. They are stronger than the expression 'within a reasonable time,' and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case.' " 10 A court order to a union to withdraw "blacking" instructions forthwith was held to require the act to be done as soon as possible in the circumstances (Kent Free Press v NGA [1987] IRLR 267). In BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union (2000) 102 IR 275 Beaumont Jconstrued an order that employees "immediately cease" industrial action as a requirement that there be compliance "as soon as reasonably possible in the circumstances". 11 Paragraph 1 of the Order did not require instant action by the CFMEU as soon as it was made or as soon as it was served on the CFMEU such that a failure to act at either moment would have put the CFMEU in technical breach of the Order. We do not understand her Honour to have considered otherwise when she said: "The language of the first injunction here is in strong terms in its requirement to 'cease' and it is plain that some urgency attends the requirement for action in that regard because the CFMEU is to do so 'immediately'. It had a choice as to how it was to end the strike it had started, although some steps are so obvious that they go without saying. The requirements of the Order and the result to be achieved were clear. … The Order reasonably construed requires cessation of the strike immediately upon the [CFMEU] having knowledge of the Order..." 12 If her Honour had considered that "the result to be achieved" was the return to work "immediately" by members of the CFMEU and that there would be a breach of the Order and a contempt of the Court committed by the CFMEU if members did not so act, such an approach would have involved an error in construction of the Order. 13 The question whether the Order was breached by the CFMEU depended upon what the CFMEU was required to do by the Order and what the CFMEU did, or failed to do, in response to the injunctions of the Court. Whether members of the CFMEU returned to work, and the time at which they did so, may have been relevant in ascertaining what the CFMEU did, or did not do, but could not, in itself, establish a breach of the Order by the CFMEU according to proper construction of the Order. 14 It is to be concluded, therefore, that the requirement to "immediately cease" obliged the CFMEU to comply as soon as reasonably possible in the circumstances. The imperative so imposed on the CFMEU needs to be understood in light of the conduct sought to be restrained (i.e. a 24 hour strike commencing in New South Wales just over an hour after the Order was made) and the time available for meaningful action if purported compliance was not to be partial and, in substance, token or illusory. 15 If it is accepted that the object of the mandatory injunction was to have the CFMEU terminate conduct engaged in that was said to breach the Commission order, then it follows that the conduct addressed by the injunction was the CFMEU call to its members to take "strike action". The injunction required the CFMEU to withdraw or cancel that direction to members. That required the CFMEU to take action as soon as reasonably possible in the circumstances to countermand the direction it had given to members to withdraw their labour at the Queensland and New South Wales mines. In the circumstances sufficient compliance with that requirement may have been effected by the CFMEU publishing a statement that it had withdrawn the direction to members to take "strike action". In the absence of express words in the Order to such effect, it could not be said that par 1 of the Order also required the CFMEU to carry out the further act of ensuring that publication of the statement was communicated to all members and/or Lodge Officers. To determine whether contempt of the Court was committed by disobedience of that part of the Order, an assessment had to be made as to when it had been reasonably possible in the circumstances for the CFMEU to carry out the act required of it by par 1 of the Order. 16 The material before her Honour did not suggest that subpars 1(a), (c) of the Order referred to separate acts committed by the CFMEU at the time of the mandatory injunction. Therefore, the subparagraphs, conjunctively, ordered the CFMEU to take steps to "cease" the one act, namely, the instruction to members to stop work for the purpose of the dispute over export coal prices. 17 That is to say, insofar as the direction to stop work given to members by the CFMEU constituted engagement by the CFMEU in "strike action", or in directing, procuring, or authorising members to stop work, the CFMEU was to cease that conduct by bringing to an end the call to members to stop work. 18 Where subpar l(b) of the Order required the CFMEU to "cease any ban on employees attending for and performing work" at the mines, there was no evidence that the CFMEU had placed a ban on, or had directed members to "ban", other employees who attended for work. If the word "employees" as used in subpar l(b) referred to CFMEU members, the subparagraph did not go beyond conduct already covered by subpars l(a) and (c). 19 Paragraph 2 of the Order directed the CFMEU that from the commencement of, and for the period of, the Order it was restrained from committing any act specified in subpars 2(a), (b) or (c) of the Order, if that act were done for the purpose of the dispute between the CFMEU and BHP as to the price of exported coal. 20 Contempt of a court order will not arise unless the terms of the order are clear and unambiguous. (See: Borrie & Lowe's Law of Contempt (2nd ed. 1983 at p.379); Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 at 95.) Therefore, if the order is a mandatory injunction, the respondent to the order must know exactly what act the order requires the respondent to perform, and if the injunction is prohibitory, the terms of the order must define clearly the acts the respondent is restrained from doing. 21 There is some force in the submission that par 1 of the Order left unclear what act the CFMEU was required to carry out. (See: United Steelworkers of America Local 663 v Anaconda Company (Canada) Ltd (1969) 67 WWR 744). The terms of the Order may be contrasted with the explicit terms of a similar injunction issued in Austin Rover Group Ltd v AUEW (TASS) [1985] IRLR 162. An injunction to "forthwith cease" a lock-out of employees was held not to define what was required of the respondent employer by the order and to be incapable of grounding a complaint of contempt for disobedience of the order. (See: Re Distillery, Brewery Union 604 v British Columbia Distillery (1975) 57 DLR (3rd) 752. In that case it was considered that, in the absence of express definition of the act required to be carried out, the respondent would not know which of several acts it was required to perform to satisfy the order. 22 If it had been argued that the proper construction of par 1 of the Order required the CFMEU to take such steps as were necessary, or to use its best endeavours, to inform each member to whom the direction had been addressed that the direction to take "strike action" had been withdrawn; or to take all such steps as were necessary, or to use its best endeavours, to ensure that CFMEU members resumed their duties of employment as soon as practicable, the inescapable consequence of such a submission would have been that the terms of the Order were ambiguous and uncertain, and that an allegation that a contempt of the Court had been committed by alleged disobedience of that Order could not be sustained. 23 Although no public announcement was made by the CFMEU that the call to members to take "strike action" had been withdrawn, Lodge Officers at the Queensland mines were informed by the CFMEU at some time between 9.15 am and 10.45 am on 8 February of the terms of the Order and that the Lodges were "directed to comply with the orders". Members of the CFMEU employed at the Queensland mines began returning to work between 10.00 am and 6.00 pm on 8 February. No allegation that a contempt of the Court was committed by disobedience of the Order was made against the CFMEU in respect of the time at which, or manner in which, the CFMEU "ceased strike action" in respect of the Queensland mines. 24 The withdrawal of labour by members of the CFMEU at the New South Wales mines continued throughout 8February and the alleged failure of the CFMEU to immediately cease "strike action" in respect of the New South Wales mines became the foundation of the contempt charge brought against the CFMEU. 25 In its defence to that charge the CFMEU contended that it had observed the requirement of the Order that it "immediately cease strike action" at the New South Wales mines when, at about 10.00 am on 8 February at a meeting of members, it informed the members employed at those mines that, pursuant to the Order, the CFMEU had withdrawn the call for "strike action" and the authorization of the stoppage of work in which the members were then engaged. Mr Maher, General President of the Division, addressed the meeting on behalf of the CFMEU and so advised the members. The meeting was addressed in similar terms by another officer of the Executive, Mr Fisher. It did not seem to be in issue that in material respects the acts of Mr Maher were within the mandate of his office, done on behalf of the Executive, and represented the conduct of the CFMEU. 26 On the findings made by her Honour, at some time before the commencement of that meeting, the CFMEU could have published a statement that it had withdrawn the call for, and authorisation of, "strike action". Her Honour stated that Mr Maher had conceded, in effect, that the CFMEU could have brought an end to its "strike action" by about 7.00 am on 8 February. Therefore, the substance of the alleged contempt arising out of disobedience of par 1 of the Order was the failure of the CFMEU to act between 7.00 am and 10. 00 am on 8 February. 27 The grounds of appeal relied on by the CFMEU were first, that her Honour erred in law in construing the Order and in finding the charge of contempt proved beyond reasonable doubt and second, that the hearing miscarried because of circumstances that gave rise to a reasonable apprehension of bias in the conduct of the hearing. We agree with Merkel J, for the reasons stated by him, that the second ground of appeal cannot succeed. 28 Prosecution of a contempt requires more than proof of the technical breach of a court order notwithstanding that the requisite mens rea for a criminal contempt may be shown to have accompanied that breach. (See: Adam Phones Ltd v Goldschmidt [1999] 4 All ER 486 per Jacob J at 495). It may be assumed that the contempt alleged in this case was a civil contempt notwithstanding the confusion that now attends the distinction between civil and criminal contempt. (See: Lightman QC A Trade Union in Chains: Scargill Unbound ‑ The Legal Constraints of Receivership and Sequestration (1987) CLP 25, 27-28). There has been academic commentary on the need to preserve the distinction between civil and criminal contempt, particularly for a contempt based on an injunction issued pursuant to an application made by a party to an industrial dispute. (See: Lord Wedderburn Contempt Of Court: Vicarious Liability of Companies and Unions (1992) 21 Ind.L.J. 51, 53-56). Liability for the imposition of a penalty on proof of a civil contempt, and the blurred distinction between civil and criminal contempt, make it appropriate that there be no distinction between the standard of proof required for the proof of complaints of civil or criminal contempt. Therefore, the standard of proof required is proof beyond reasonable doubt. (See: Witham v Holloway (1995) 183 CLR 525; C. O'Regan Contempt of Court and the Enforcement of Labour Injunctions (1991) 54 MLR 385, 393-394; Microsoft Corporation v Marks (1996) 69 FCR 117). 29 As the usual outcome of successful contempt proceedings, whether classified as civil or criminal, is punishment, they ought be seen as essentially criminal in nature (Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 at 49), so that correspondingly appropriate safeguards ought apply (cf. Doyle v The Commonwealth (1985) 156 CLR 510 at 516), though not necessarily such as would for all procedural and other purposes equate contempt proceedings with the trial of a criminal charge: (Witham v Holloway at 534). 30 It has long been accepted that a person should not be punished for contempt unless the specific charge against him or her be distinctly stated and an opportunity of answering it given to that person (Coward v Stapleton (1953) 90 CLR 573 at 579-580.) "[T]his principle must be rigorously insisted upon" (Coward v Stapleton at 580; Doyle v The Commonwealth at 516). It is reflected in 0 40 r 6 and r 8 of the Federal Court Rules which require that, on a proceeding for punishment of an alleged contempt a statement of charge "specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application" and that the "notice of motion or application, the statement of charge, and the affidavits [in support of the application] shall be served personally on the accused person". 31 The requirement that the statement of charge specify the contempt alleged is so as to allow the accused person to know the case he or she has to meet and to defend (Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 73; see also: Cotroni v Quebec Police Commission (1977) 80 DLR (3rd) 490 at 497 "Precision is necessary if the accused is to be able to defend himself effectively"). The vehicle most commonly used to specify the conduct relied on to support the charge laid is the provision of appropriate particulars in, or annexed to, the statement of charge itself (Concrete Constructions at 73-74). If the statement of charge itself does not sufficiently specify the contempt, the affidavit evidence served with the statement cannot be relied upon to remedy the deficiency (Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683). 32 Unless and until an application is allowed to alter a particularised statement of charge, the accused is entitled to insist that he or she is only required to meet the charge as made. As was observed by Evatt and Deane JJin Australian Building Construction Employees' and Builders Labourers' Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 at 206-207: "The transcript indicates that senior counsel for the appellants made clear that objection was taken to any departure by the respondents from the charge of contempt as particularized in the statement of charge. The question whether the particularized statement of charge was adequate was adverted to by senior counsel for the respondents but no application was made to amend it and it remained unaltered in the form set out above. In these circumstances, the appellants were entitled to conduct their case on the basis that the only charge which they were required to meet was that which had been particularized against them. It is not for an appellate court to speculate whether, if the charge against a particular appellant had, either initially or by amendment, been differently framed or particularized, the evidence adduced would have been the same or the conduct of the particular appellant's case would have been unaltered. … The appeal…falls to be determined by reference to the charge, as particularized in the statement of charge, which the...appellant was called upon to meet and to the finding of guilt which his Honour made." 33 As discussed below, the essence of the case in contempt as presented by BHP Steel as prosecutor of the charge was that the CFMEU had failed to "inform" members employed at the New South Wales mines that the direction given by the CFMEU to members to take "strike action" had been withdrawn and further, that the CFMEU had procured and authorised members to stop performing work at the New South Wales mines in contravention of the terms of the Order. 34 The Statement of Charge set out the orders made by her Honour, albeit surprisingly inaccurately in relation to the prohibitory order (the purposive limitation on the scope of the injunction was simply omitted); particularised the manner in which the CFMEU was notified of the terms of the Order; and specified alleged breaches of the Order and gave particulars. 35 The relevant parts of the Statement of Charge read as follows: "3. In breach of the Order, from the time of the making of the Order and continuously thereafter until 4pm on 9 February 2000, at the [New South Wales mines] the [CFMEU]: (a) continued to take strike action for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (b) continued its ban upon employees attending for work and performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (c) continued to authorise members of the [CFMEU] who were employees of [BHP Steel] to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (d) authorised members of the [CFMEU] who were employees of [BHP Steel] to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (e) directed members of the [CFMEU] who were employees of [BHP Steel] to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (f) procured members of the [CFMEU] who were employees of [BHP Steel] to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices. The affidavits relied upon by the applicants in relation to these allegations are identified in the particulars below." 36 It is noteworthy that the allegations of the Statement of Charge relate to her Honour's Order globally. They do not specify expressly in each instance whether the alleged breach is of one or other, or both, of the mandatory and prohibitory orders contained in the Order. The apparent premise of the allegations is that any continuation of the strike or bans, and any further authorising of members of the CFMEU to stop performing work, would breach both the mandatory cessation order and the prohibitory restraining order. This said, those particulars that relate to omissions to act relate more naturally in the first instance to the mandatory order, while those alleging subsequent positive conduct more naturally relate to the prohibitory order. 37 The particulars apparently relevant to subpars 3(a), (b) and (c) of the Statement of Charge, each of which was followed by a sequence of references to affidavits, read as follows: "The employees of [BHP Steel] listed below...failed to return to work on their appointed shifts...because [the CFMEU]: (i) failed to inform such employees that the strike which it had required to begin at [BHP Steel's New South Wales mines] for 24 hours from midnight...on 7 February 2000 had ceased; … (ii) failed, between the time the said Order was made and 4pm on 9 February 2000 to inform such employees that they should return to their duties; … (iii) failed to cancel a meeting that had been called for 10 am...on 8 February 2000 at the Wonoona [sic] Bulli RSL Club, for the purposes of the strike;…" 38 Where those particulars refer to "employees" it may be taken that they were intended to refer to members and where particular (i) recites that the CFMEU "failed to inform...employees that the strike...had ceased" it may be assumed that the particular was directed to an alleged failure by the CFMEU to take steps as soon as reasonably possible in the circumstances to withdraw the call to members to stop work, and not to a failure by the CFMEU to "ensure" that each member was so informed. If it were the latter then, as discussed earlier, the terms of the Order would be ambiguous as to the act the CFMEU had to carry out to comply with the Order and a complaint of contempt would not lie. 39 Particular (i) could suggest any one of three possibilities: (a) that no notification of withdrawal of the direction to take "strike action" was made at all; (b) that any notification given was colourable; or (c) that whatever notification was given, it was,in light of the terms of the Order, a failure to act to withdraw the call for "strike action" as soon as reasonably possible in the circumstances. In our view, it is the third of those possibilities that expressed the purpose of the particular in the context of the Statement of Charge. The CFMEU was put on notice by the particular that the actions taken by it to immediately cease "strike action" after notice of the terms of the Order had been received by a person or persons having authority to act, were in issue and that central to that was whether it had acted as soon as reasonably possible in the circumstances to withdraw or cancel the direction to stop work. 40 With regard to particular (ii) the failure to act alleged therein does not appear to describe a failure to comply with the terms of par 1 of the Order. Insofar as par 1 of the Order directed the CFMEU to act, it did so by directing the CFMEU to cease "strike action". The act to be carried out by the CFMEU to comply with that Order has already been discussed. The Order did not direct the CFMEU to "inform" members that "they should return to their duties". 41 Particular (iii) recites a further circumstance of failing to act, namely, "failing to cancel a meeting" as an alleged breach of the Order. However, in its terms, par 1 of the Order did not direct the CFMEU to do the act the particular alleges that the CFMEU failed to do. The particular fails to identify a breach of the Order. 42 The remaining particulars appear to purport to be relevant to breaches of par 2 of the Order alleged in subpars 3(d)-(f) of the Statement of Charge. Those particulars read as follows: "(iv) by its authorised officer, one Tony Maher, at about 8.30 am...on 8 February 2000 on ABC radio, represented that the strike was continuing in order to 'drive home a message to BHP'; … (v) organised and conducted a union meeting at 10 am…on 8 February 2000 at the Wonoona [sic] Bulli RSL Club, at which a resolution was passed to extend strike action for a further 24 hours from midnight...on 8 February 2000; … (vi) at about 10 am ... on 8 February 2000 at the Wonoona [sic] Bulli RSL Club, passed a resolution to extend strike action for a further 24 hours from midnight...on 8 February 2000. …" 43 Particular (iv) on its face was not capable of supporting the contempt alleged in either subpar 3(d), (e) or (f) of the Statement of Charge. Her Honour did not find that a contempt as set out in that particular had been committed. 44 In some respects, as discussed later in these reasons, particulars (v) and (vi) became the nub of the case argued before her Honour. 45 Particular (v), though not saying so in express terms, necessarily implies both that the CFMEU was itself responsible for the resolution passed (whether because it authorised or procured it) and that the strike action so extended was for the purpose of any dispute or disagreement about, or concerning, negotiations or the outcome of negotiations, over coal export prices. So understood, independently it could support a finding of contempt. 46 Particular (vi) is a direct allegation that the CFMEU passed the resolution and probably adds little to particular (v). 47 In expressing the foregoing views regard has been given only to the terms of the particulars themselves. Particular (i) does incorporate by reference the employees and their hours of employment referred to in a large number of affidavits filed in support of BHP Steel's notice of motion and, to that extent, those affidavits can properly be said to be part of the Statement of Charge. But not otherwise. An accused person is entitled to be informed from within the four corners of the Statement of Charge what is the case to be met. A specific charge must be stated distinctly. And the accused cannot be expected to cull from numerous affidavits the actual case against him which has purportedly been particularised in the Statement of Charge (cf. Harmsworth v Harmsworth at 1683). In any event the expedient of referring to affidavit material after each particular was a practical response to a suggestion made by her Honour at the 27 April 2000 directions hearing that BHP Steel identify which affidavits were relied upon in relation to which issue. In the language of 0 40 r 7, the affidavits so referred to embodied the evidence in support of the charge as it was particularised. 48 The comment to be made on the charges as particularised is that, in its Defence to the Statement of Charge, the CFMEU denied par 3 in its entirety. It likewise took the position in submissions filed prior to the hearing before her Honour that it was requiring BHP Steel to adhere to the charges as they had been particularised. No later amendment having been made to them, the CFMEU was entitled to insist both at trial and on this appeal that its conduct be judged by reference to the charges as particularised. 49 We turn now to her Honour's findings as they bear on the charges as particularised. First, compliance with the terms of the mandatory order presupposed that an officer or organ of the CFMEU having authority in the circumstances to take the action required, was aware of the terms of the Order. For this reason, as her Honour indicated: "Critical issues in the proceedings are the extent of Mr Maher's knowledge and that of other members of the Executive, as to the existence of the Order and what it required, and when they received that knowledge. The issues arise because members of the CFMEU in the New South Wales mines referred to did not immediately return to work." 50 Her Honour found (i) that Mr Maher was told of the Order at about 10.50 pm on 7 February as a result of a brief mobile phone call from Mr Humphreys, BHP Steel's then solicitor; (ii) that if Mr Maher remained unfamiliar with the terms of the Order, these were discussed with him by Mr Everill, the Lodge President of the Appin mine, in a phone call made by the latter to him shortly after 5.00 am on 8 February; (iii) that Mr Fisher, an office-bearer of the Central Executive and District President for the South-Western District of New South Wales had also been advised of the Order by Mr Everill; (iv) that Mr Fisher telephoned Mr Maher at 6.48 am on 8February but "[n]o action was taken by either of them to bring the strike to an end"; and (v) that from about 7.00 am Mr Fisher and Mr Maher could have taken steps to bring the strike to an end, "as Mr Maher effectively conceded in his evidence". These findings resulted in a sequence of adverse credibility findings being made against Mr Maher whose own evidence was that he only heard of the injunction some time after 8.30 am on 8 February. They also required the drawing of several crucial inferences particularly in relation to the states of knowledge and the conduct of Mr Everill and Mr Fisher, neither of whom gave evidence. These inferences were clearly open to her Honour in light of what had been proved about telephone communications between CFMEU and Lodge Officials and the service of the Order on officials, and in the absence of explanation or contradiction. 51 In relation, then, to charges 3(a), (b) and (c) of the Statement of Charge as particularised in particular (i), the findings so made justified a finding that the breaches as charged had been made out. And so her Honour found: "Mr Maher was told about the Order by Mr Humphreys. He was told that an injunction had been obtained against the Union relating to the price dispute. Given Mr Maher's experience he would have understood that there had been an Order made by the Court prohibiting the strike action. It is not necessary that he be shown to be aware of its full terms: Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535, 538. The CFMEU had not at this point been personally served and it was not served until the following morning, but in these proceedings fines are sought and the embargo of 0 37 r 2(1) does not apply: Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110, 113. In any event that rule contains an exception, in the case of notification by other means, such as is recognised by the common law: r 2(5) (and see Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110). It is not necessary to determine whether other members of the Executive were aware. It was Mr Maher's obligation, on behalf of the Union to notify anyone necessary to effect an end to the strike. It is likely that he did so at the conference dinner and that others were then informed. If Mr Fisher was not told earlier, Mr Everill almost certainly would have told him when he spoke to him at 6.48 am. Even at this timehe and Mr Maher could have taken steps to bring the strike to an end, as Mr Maher effectively conceded in his evidence. Lodge Officials and members of the Union were waiting for advice from the Executive. Without it they would not act upon BHP Steel's advices about the Order. It was not suggested that there was no action open to the Executive or Mr Maher to put matters in train. Notification was clearly possible. One may observe how promptly the strike had been notified the day before."(Emphasis added.) 52 Notwithstanding the foregoing comments on the findings made apparently with reference to particular (i), reading her Honour's reasons as a whole, the conclusion that the CFMEU committed a contempt of the Court by breaching the Order also rested on findings purportedly made with regard to particulars (v) and (vi) based on her Honour's perception of the conduct of the CFMEU at, and the outcome of, the meeting of members held on 8 February addressed by Mr Maher and Mr Fisher. In particular considerable weight seems to have been placed by her Honour on the failure of the members of the CFMEU employed at the New South Wales mines to return to work after that meeting concluded. It was implicit in the case presented to her Honour that if the members had resumed employment after the meeting concluded, no distinction would have been drawn between the acts done by the CFMEU to comply with the Order by withdrawing the direction to members to take "strike action" in Queensland and in New South Wales, and the allegation that the CFMEU had committed a contempt of the Court would not have arisen. Members employed by BHP Steel at the Queensland mines commenced "strike action" on 7 February at least four hours before the members employed at the New South Wales mines. A return to work by members in New South Wales after conclusion of the meeting would have been, to a large extent, synchronous with the return to work by members at the Queensland mines which, as noted earlier, took place between 10.00 am and 6.00 pm on 8 February. 53 Notwithstanding the foregoing, it is apparent that her Honour was satisfied that the failure to act between 7.00 am and 10.00 am on 8 February in respect of the New South Wales mines amounted to disobedience by the CFMEU of par 1 of the Order in a degree that constituted contempt of the Court. As is discussed below, her Honour's assessment of the seriousness of the contempt was affected by her view of the conduct of the CFMEU at the meeting. However, the essence of the finding of contempt remained the failure to act between 7.00 am and 10.00 am to withdraw the direction to members to take "strike action" at the New South Wales mines. 54 Mr Maher's evidence in respect of the meeting was set out in an affidavit, the relevant part of which read as follows: "45. Prior to the meeting I spoke to some CFMEU rank and file members. Complaints were made to me by members about the fact that process servers had knocked on their doors in the middle of the night to serve court documents, waking family members. Complaints were also made to me that members were told that they would lose their houses and other possessions if they did not obey the Court orders. It appeared to me from these comments that many of the members were in an angry mood. 46. The meeting commenced shortly after 10am. I observed that some members were drinking alcohol at the meeting. 47. At the commencement of the meeting I gave a report to the members. I spoke about recent developments concerning BHP. The main issues raised were the Log of Claims served by BHP on the CFMEU, the Pilbarra [sic] dispute, and coal prices. A national resolution was put to the meeting and passed by the members. A copy of that resolution is annexed … 48. I then spoke about the stoppage and about the Federal Court proceedings. I said words to the effect of: Our action has brought about a legalistic response from the Company and now we've got a Federal Court injunction. I haven't seen the terms of the injunction but from what I have been told we have to return to work immediately. The Executive therefore directs you to return to work. 49. Mr Fisher then addressed the meeting. Mr Fisher said words to the following effect: Our position is that you go back to work. 50. At the end of the reports by myself and Mr Fisher the meeting was thrown open for questions and comment from the floor. At this point a number of members spoke from the floor in an angry manner about the actions of BHP in sending process servers in the middle of the night to serve documents, and the effect that this had had on their families. Others objected to receiving telephone calls in the middle of the night. Some members also raised the fact that they had been threatened with loss of their houses and other possessions if they did not return to work. 51. During this discussion a resolution was moved from the floor. The resolution called for an extension of the stoppage for a further 24 hours in protest at BHP's harassment of employees. 52. In response to this resolution I said words to the following effect to the meeting: You can't extend the stoppage because its [sic] a National stoppage called by the Executive. The Executive has now said that it should be ended immediately. Any further stoppage is not supported by the Executive. 53. I recall that Mr Fisher made a similar comment to the meeting. 54. Another resolution was then moved from the floor which called for a further 24 hour stoppage. Annexed…is an extract from the Appin Lodge Union Book which records the resolution. This record accords with my recollection of the resolution. The resolution was passed on the voices. I did not speak further in the debate because I had already made clear the Executive's position that a further stoppage was not supported. 55. The meeting ended at about ll.30 am and the members dispersed. It was apparent to me from the passing of the resolution moved from the floor that the members did not intend to return to work prior to the end of the 24 hours stoppage, notwithstanding the Executive direction. I was of the view that there was no further action which could effectively be taken by me to persuade the members to return to work prior to the end of the 24 hour stoppage. I did not believe that the members, having apparently rejected one direction by the Executive, would be willing to accept a further direction. I observed the latter part of the meeting to be dominated by expressions of anger from members at the perceived harassment by BHP of union members and officials the previous night." 55 The cross-examination of Mr Maher on the foregoing evidence did not challenge his statement that members who assembled at the meeting were "very angry about [BHP Steel's] actions overnight". Nor was there any challenge to Mr Maher's account of the statements made by members at the meeting in support of the motion put to the meeting by members that there be a stoppage of work to protest at the perceived harassment and intimidation by BHP Steel of the officials elected by those members to represent them at the mines. 56 Her Honour did not reject Mr Maher's evidence. But in her reasons her Honour set out the following conclusions in respect of the involvement of the CFMEU in the meeting: "Mr Maher's reference to the Court Order could not have impressed upon the members the Union's unqualified obligation to act in compliance with it and at once. After inflaming his audience he spoke of the Order as a 'legalistic response' which is far from explaining its seriousness. Rather than explaining the obligation to comply with an Order made by a Court, Mr Maher connected it with the company which was to be seen as callously inflicting harm on employees. In that context, the Order was presented as another such action. To say that Mr Maher was paying mere lip service to the CFMEU's obligation to bring the strike to an end may be something of an understatement. … There is no doubt, in my view, that the CFMEU's conduct at the meeting was designed to, and had the effect of, encouraging the employees not to cease the strike action and to take it further. Mr Maher's words were an active encouragement to continue an expression of anger against the company. One might expect rank and file members to have been seeking guidance from the Executive and the Branch. Their statements before the meeting to persons notifying them of the Order bear this out. It is not difficult to imagine that the address by Mr Maher to the meeting didnothing to lessen the anger which he was determined to keep alive. He took no serious steps to dissuade them from further strike action. If he did speak some words of non-support they were very few. They could hardly have been thought sufficient for that purpose. The members could not have been left in any doubt about Mr Maher's and the CFMEU's lack of sincerity in not supporting the strike. They would have understood they were being encouraged to do so. … The decision to continue with the meeting and the conduct of Mr Maher at it is evidence of a determination, on the part of the CFMEU, to continue the strike action. I am satisfied that the CFMEU through Mr Maher, acted at the meeting in such a way as to ensure a continuation of strike action." 57 The passages in her Honour's reasons recited above suggest that her Honour may have misunderstood the limitations of the evidence presented to the Court as to the manner in which the meeting was conducted and further that her Honour may have confused the terms of the Order that the CFMEU do a specific act, with the outcome BHP Steel sought to achieve when it obtained the Order. The meeting had been convened for members employed at the New South Wales mines to receive a report from the CFMEU on a number of matters that were separate from the dispute to which the injunctions were directed. There was a pre‑existing commitment by the CFMEU to report to members on those matters and the opportunity to conduct the meeting arose when all the members became available to attend such a meeting by reason of the "strike" called by the CFMEU for 8 February. Accordingly, the meeting had been convened when the direction to "strike" was given. 58 The question before her Honour was not whether anything had been done by the CFMEU to lessen the anger of members attending that meeting; nor whether any serious steps had been taken by the CFMEU to dissuade members from "further strike action". Under par 1 of the Order the CFMEU was required to act as directed by that paragraph and, under par 2 of the Order, the CFMEU was restrained by the Court from doing an act specified therein. Therefore, the question whether the CFMEU had committed a contempt of the Court could only arise if the CFMEU failed to act as directed or if it did an act the injunction prohibited it from doing. 59 The CFMEU is an organisation registered under the Act and, therefore, an entity separate from its members, whether or not the members act singularly or in combination. No employee, being a member of the CFMEU who had withdrawn his or her labour in response to the CFMEU direction to do so, had been directed by the Court to return to work. Therefore, putting to one side questions of accessorial liability and the obligations of third parties - issues not raised in this case - an employee would not disobey the Order by failing to return to work and would not become liable to the imposition of a fine by the Court for a contempt of the Court. (See Borrie and Lowe at p. 403). It was not submitted that the CFMEU could be held liable in contempt vicariously if members of the CFMEU who had engaged in "strike action" for a proscribed purpose refused to cease that action. 60 No disobedience of the Order and contempt of the Court by the CFMEU would arise if the members attending the meeting decided to withdraw their labour in protest at conduct on the part of their employer that the employees perceived to be intimidatory. Her Honour seems to have regarded the resolution by the members that they withdraw their labour for 24 hours from 8 February as "a continuation of the strike action" and that such action by the members had been procured and authorised by the CFMEU in breach of the Order. 61 Clearly that could not be so unless a finding were made, on appropriate evidence, that the advice Mr Maher gave to the members at the meeting, that the CFMEU had withdrawn the direction to engage in "strike action" and that they were to return to work, and the resolution to stop work carried by the members at the meeting, was, in each case, a sham and that the true will of the members at the meeting, procured by acts of officers of the CFMEU, was that "strike action...for the purposes of any dispute or disagreement about, or concerning the negotiation or the outcome of negotiations over export coal prices" be continued. 62 The view her Honour took of what Mr Maher said suggests that she found that his action in directing CFMEU members to return to work was colourable. But if such was the case, then it would not have been open to her Honour to find that the continuation of the strike action was referable to the conduct specified in any particular. If the CFMEU was to be charged with continuing the strike action by acting colourably when notifying withdrawal of the direction to stop work, that allegation ought, as a matter of basic fairness, to have been brought home explicitly to the CFMEU in the Statement of Charge. It was not. 63 Significantly in this regard, while Mr Maher was questioned by her Honour as to why he had not advised members that the CFMEU had withdrawn its call for "strike action" until after he had spoken of the bad faith of BHP Steel, the closest cross-examination of Mr Maher came to suggesting that the direction to return to work was colourable, was a suggestion put to him that he had later endorsed what the members had done in voting to engage in another "strike" and a question asked as to whether he had a smile on his face when he explained the position of the CFMEU. Mr Maher denied both matters. The prosecutor adduced no evidence to establish such a case. In the course of the cross-examination of Mr Maher, her Honour alluded to some of the matters the prosecutor would have had to prove if it had sought to present that case: "Perhaps a lot of it depends upon how it's said and the tone you take and all of those matters which are a bit hard to assess now, of course." 64 Irrespective of the absence of an appropriate particular, the evidence presented in respect of the conduct of the meeting was not capable of supporting a finding that the CFMEU acted colourably. Although her Honour found Mr Maher to be an unsatisfactory witness in his claims that he was unaware of the Order until the morning of 8 February and that he had not discussed the terms of the Order with other CFMEU officers, that alone did not permit a finding to be made beyond reasonable doubt as to the conduct of the CFMEU at the meeting. There had to be some evidence on that issue. 65 The only evidence in respect of the conduct of the meeting and of the attitude of the members was that provided by Mr Maher. Her Honour appeared to accept that the members were very angry before the meeting commenced but attributed that anger to the dissatisfaction of the members with the efforts BHP had made to maintain the price paid for the coal it exported. But there was unchallenged evidence that the members were angry because BHP Steel had directed copies of the Order to be served personally in the early hours of the morning of 8 February on members who were Lodge Officers, and that members understood that those officers had been told that if "they did not obey the Court orders" they would lose their houses and other possessions. 66 Her Honour appeared to form the view that occurrence of those events in the course of the preceding night would not have been sufficient to move the members attending the meeting to anger. Her Honour referred to the absence of any statement in depositions made by BHP Steel officers that members had expressed any anger when they had been contacted by those officers by telephone at their homes late at night on 7 February and informed that a court order had been made, "ordering all striking workers back to work immediately". 67 Her Honour accepted that misrepresentations as to the requirements of the Order were made by officers of BHP Steel in those telephone calls, but considered that not to be relevant to the issue of the attitude of the members at the meeting, partly, it seems, because of what her Honour perceived to be a lack of reaction by members at the time those misrepresentations were made. 68 It appears to have been overlooked that it was likely that, upon members gathering for the meeting and discussing between themselves the events of the preceding night, they would have become aware that the terms of the Order had been misrepresented to them, and that such events may have been perceived as intimidatory action by the employer, giving them cause for anger. In addition, due regard had to be given to the fact that a number of the members called by officers of BHP Steel were said to have "hung up" on the caller after a brief conversation. In any event, it was likely that the real cause for anger was the decision of BHP Steel to effect personal service of the Order upon Lodge Officers late at night. The evidence before her Honour showed that Lodge Officers had been served personally at their residences between 2.50 am and 4.42 am on 8 February. 69 Her Honour did not deal with the inference presented by the foregoing material that if the members had not been angry beforehand, they became angry when they assembled for the meeting and learned that their local representatives had been subjected to personal service of a copy of the Order in the early hours of the morning and had been told that their homes would be in jeopardy if they did not obey the Order. 70 The resolution of the members to stop work, expressed to be because of the harassment and intimidation of "our elected union officials both at District and Lodge level" (emphasis added), could not support a conclusion that only Lodge and District officials, and not other members, were angry about the conduct of BHP Steel on the preceding evening. 71 The will of the meeting, as recorded in the resolution, was expressed in clear terms. Even if there had been evidence that Mr Maher encouraged the members to take the action so resolved, the genuineness of the resolution remained to be considered. The resolution could not be regarded as the "continuation of strike action" by the CFMEU, nor the procuration or authorization thereof by the CFMEU, without determining whether the members had resolved to withdraw their labour for a purpose proscribed by the Order. 72 In the absence of any evidence to contradict the material adduced or to provide a foundation for a conclusion that the intent and purpose of the meeting was other than that recorded in the resolution, the evidence that the members had so resolved and the reasons expressed in the resolution for doing so, had to be given due weight in determining whether a contrary proposition had been proved beyond reasonable doubt. 73 Proof beyond reasonable doubt is not satisfied by presenting a court with a choice between competing inferences. As Lord Denning MR said: "A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time- honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. … [Where] two possibilities are equally likely…[it] is not possible to say which of them is correct. …That would be conjecture rather than inference - surmise rather than proof. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt." (In re Bramblevale Ltd [1970] 1 Ch 128 at 137). 74 On the evidence, it was not open to her Honour to conclude beyond reasonable doubt that "the issue of coal prices" between the CFMEU and BHP was part of the purpose of the resolution of the members at the meeting that there be a 24 hour stoppage to protest at the conduct of BHP Steel, nor could it be concluded that the CFMEU had procured or authorised such action by the members for the purpose of the dispute over coal prices. 75 The resolution, and the intent and purpose of the members expressed therein, was consistent with the evidence adduced. There was no evidence to permit a conclusion that the resolution was a pretence, the real purpose of the meeting as procured or authorised by the CFMEU being to continue "strike action" over the issue of the price accepted by BHP for exported coal. The members were angry and resolved to withdraw their labour to express to BHP Steel that the events that had caused that anger would not be tolerated then, or in future, by the "rank and file". The resolution stood on its own as an expression of the will of the members as to the manner in which that issue would be dealt with by them. 76 Her Honour seems to have taken the failure of the members to report for work at the New South Wales mines after the meeting ended, as evidence that the meeting must have been conducted by Mr Maher to procure the members to agree to continue to withdraw their labour for the purpose of the dispute over coal prices. As indicated above, if the members were aggrieved by the conduct of BHP Steel in directing copies of the Order to be served at the homes of Lodge Officers in the early hours of the morning, it was not inherently improbable that the members would decide on fresh action against BHP Steel by not returning to work after the meeting and by resolving to conduct a further 24 hour stoppage. If a finding were to be made that the CFMEU, through Mr Maher, procured or authorised continuation of a stoppage of work for the purposes of the dispute between the CFMEU and BHP over "export coal prices", there had to be evidence of acts of Mr Maher, and of the members, in the course of the meeting that showed, beyond reasonable doubt, that Mr Maher and the members had a joint purpose, namely, to promote the position of the CFMEU in a dispute with BHP about "export coal prices", that purpose to be effected by the members refusing to return to work, and by resolving to stop work for a further period of 24 hours. There was no evidence to that effect and no foundation of fact was provided from which such an inference could be drawn. 77 On the evidence adduced it could not have been concluded beyond reasonable doubt that, in breach of the Order, the CFMEU engaged in procuring or authorising members to stop work for the purposes of a dispute concerning the negotiation of "export coal prices". 78 It follows that the appeal by the CFMEU against the declaration made by her Honour succeeds to the extent that the declaration that the CFMEU committed a contempt of Court by procuring or authorising its members to take further strike action is set aside and the terms of the declaration varied accordingly. Otherwise, the appeal is dismissed. 79 Her Honour's assessment of the appropriate fine to be imposed, and the order made that the CFMEU pay BHP Steel's costs on an indemnity basis, depended upon findings made by her Honour that are to be set aside. Therefore, the appeal against the orders made by her Honour for the imposition of a fine and for the payment of costs must be allowed, the orders set aside and the matter remitted to her Honour for re-determination of those issues in accordance with these reasons. I certify that the preceding seventy‑nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee & Finn JJ. Associate: Dated: 12 December 2001 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 1 OF 2001 Q 68 OF 2001 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPELLANT AND: BHP STEEL (AIS) PTY LIMITED ACN 000 019 625 RESPONDENT JUDGE: LEE, FINN AND MERKEL J DATE: 12 DECEMBER 2001 PLACE: PERTH (HEARD IN BRISBANE) REASONS FOR JUDGMENT MERKEL J: Introduction 80 The appellant ("the CFMEU") has appealed against orders made by the primary judge that: · it be declared that the CFMEU "…is guilty of contempt of this Court by its conduct in breaching the Order made against it on 7 February 2000 by continuing strike action and authorising its members to stop performing work and procuring and authorising its members to take further strike action." · a fine of $200,000 be imposed on the CFMEU for its contempt; · the CFMEU pay the costs of the respondent ("BHP Steel") on an indemnity basis. 81 The CFMEU has appealed against conviction, penalty and the costs order. It has relied upon numerous grounds in its appeal and has made extensive written and oral submissions concerning those grounds. I propose to adopt an approach similar to that adopted in Amadio v Henderson (1998) 81 FCR 149 at 175 where a Full Court confined its reasons to the issues raised by submissions of the appellant that were both significant and consequential as to do otherwise would have made the reasons for judgment unnecessarily long. Background 82 BHP Steel employed members of the CFMEU in a number of coal mines in certain districts in Queensland and New South Wales. On 7 February 2000 the CFMEU became aware that BHP was about to agree to a reduction in the price of export coal thereby endangering the employment of its members. At about 3.00 pm the Central Executive of the CFMEU called a strike for twenty-four hours from the commencement of the night shift, which was 7.00 pm for employees at the Queensland mines and 11.00 pm for employees at the New South Wales mines. 83 In the meantime BHP Steel, anticipating the strike action, obtained orders from the Australian Industrial Relations Commission under s 127(1) of the Workplace Relations Act 1996 (Cth) ("the Act") requiring the CFMEU and other unions not to take or continue the strike action. The Commission's order was served on, and its content notified to, the CFMEU but no attempt was made to comply with it. 84 At about 9.50 pm the primary judge granted injunctions pursuant to s 127(6) of the Act which, relevantly, ordered, inter alia, that the CFMEU, its servants, agents or howsoever: "1. … immediately cease …with respect to the First and Second Applicants' coal mines in Queensland and New South Wales listed in Annexure 'A' hereto… … (a) strike action; (b) any ban on employees attending for and performing work in accordance with the applicable awards or certified agreements noted in Schedule 'B' hereto; or (c) directing, procuring or authorising members of the Respondents or other employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements listed in Schedule 'B' hereto; for the purposes of any dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices, until 4 pm Wednesday 9 February 2000 or further earlier order. 2. …be restrained from engaging in the following with respect to the Applicants' coal mines listed in Annexure 'A' hereto … (a) taking or continuing strike action; (b) commencing or continuing any ban on employees attending for and performing work in accordance with the applicable awards or certified agreements listed in Schedule 'B' hereto; (c) directing, procuring, advising or authorising members of the Respondents or other employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements listed in Schedule 'B' hereto; for the purposes of any dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices, until 4 pm Wednesday 9 February 2000 or further earlier order.' 85 Annexure "A" to the order referred, inter alia, to BHP Steel's Tower, Elouera, West Cliff, Appin and Cordeaux Collieries in New South Wales ("BHP Steel's New South Wales mines"). 86 The order provided that, without limiting other means of service, it would be sufficient service of the order if: "(a) a copy is served personally or by facsimile on the following: (i) National or State Secretary or relevant Lodge President or Secretary of the Construction, Forestry, Mining and Energy Union; … (b) a copy of the Order is left at the National or State office of the Construction, Forestry, Mining and Energy Union,…" 87 The CFMEU admitted that the order was served in accordance with its terms and, subject to certain exceptions, its content was notified substantially as alleged by BHP Steel in its Statement of Charge. 88 The strike at BHP Steel's Queensland mines ceased and the conduct of union officials in relation to that area was not the subject of contempt charges. The strike at BHP Steel's New South Wales mines did not cease and the conduct of union officials in relation to the strike at those mines became the subject of contempt charges against the CFMEU. It was common ground that, in order to establish the contempt with which the CFMEU was charged, BHP Steel was required to prove beyond reasonable doubt (Witham v Holloway (1995) 183 CLR 525 at 534) that the CFMEU had deliberately breached the order of the primary judge in the sense that the disobedience is not "casual, accidental or unintentional" (AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113). The prosecutor's onus does not apply to every evidentiary issue which arises in the case, but "only to the ultimate issues of the presence of the elements of the crime charged" (R v Booth [1983] 1 VR 39 at 47 per Lush J). 89 At the trial of the contempt proceeding the parties were in dispute as to the knowledge of members of the Central Executive of the CFMEU of the existence and content of the order of the primary judge, and when they received that knowledge. In particular, they were in dispute as to the role of Mr Maher, the General President of the Central Executive of the CFMEU, who was the only witness called by the CFMEU in support of its defence that it did not engage in conduct that constituted a wilful breach of the Court order. 90 Mr Maher said that he only became aware of the order at about 9.30 am on 8 February. He claimed that he decided that the appropriate way to comply with the order was to inform the members employed by BHP Steel at its New South Wales mines of the cessation of the strike at a "report back" meeting of members that had, prior to the making of the order, been scheduled for 10.00 am on 8 February at the Woonona-Bulli RSL Club. He said that the instruction given by him to members at the meeting that they were required to return to work was, in his view, the most effective and practicable way of achieving compliance with the order. Mr Maher claimed that, notwithstanding his instruction, the workers stayed out on strike in protest against the conduct of BHP Steel in intimidating and harassing members when it informed them of the orders made by the primary judge. 91 The primary judge described the issues arising in relation to Mr Maher's conduct as follows: "The issues arise because members of the CFMEU in the New South Wales mines referred to did not immediately return to work. The requirements of the Order were first referred by Mr Maher to members of the Lodges in question at a meeting which commenced at about 10.00 am on the morning of 8 February 2000. The CFMEU, through Mr Maher, says that by the time those officers of the Union able to direct industrial action had heard of the Order, and what it required, it was too late to call off the meeting, which had been organised the day before. It was considered practicable to use the opportunity presented by the meeting to advise members of the terms of the Court Order and give them a direction to stop the strike, but that in the climate prevailing, fuelled by BHP Steel's conduct the previous evening in connection with the notification of the Order, that was not accepted by the meeting which instead resolved to have another strike. BHP Steel submits that the CFMEU should not be believed as to any of these explanations and that its disobedience to the Order was the result of a calculated decision. It further submits that it was also incumbent upon union officials at the District Branch level to take action." 92 BHP Steel adduced evidence of numerous phone calls late in the evening of 7 February and in the early hours of 8 February between senior officers in the Mining and Energy division of the CFMEU, including Mr Maher, from which the primary judge inferred that Mr Maher, as well as other senior officers of the CFMEU, were aware of the Court order prior to 7.00 am on 8 February. BHP Steel also adduced evidence from its solicitor, Mr Humphreys, that, late in the evening of 7 February in a telephone conversation with Mr Maher, who was at a conference dinner in Canberra, he informed Mr Maher of the order. Mr Maher admitted having the conversation but claimed that his mobile phone had cut out prior to him being informed of the order. 93 It was for the primary judge, as the arbiter of fact, to accept or reject Mr Maher's evidence. Her Honour did not regard Mr Maher as a witness of credit and did not accept his version of the relevant events. Her Honour held that it had been established beyond reasonable doubt that the contempt with which the CFMEU had been charged had been made out. 94 The factual findings upon which her Honour acted may be summarised as follows. Mr Maher knew of the order after BHP Steel's solicitor had informed him of it shortly before 11.00 pm on 7 February but, in any event, knew of it by about 5.00 am on 8 February at the latest, after conversations with other CFMEU officials. Mr Fisher, another member of the Central Executive, was aware of the order by 6.48 am at the latest, after he had spoken to Mr Everill, a Union official who was Lodge President for one of the New South Wales mines. Notwithstanding those notifications Mr Maher and Mr Fisher took no immediate action to bring the strike to an end. 95 On 8 February, in an 8.30 am radio interview concerning the strike, Mr Maher made no mention of the Court order or of any requirement that the strike must cease. 96 At the commencement of the meeting of members at 10.00 am on 8 February Mr Maher did not refer to the Court order nor did he take any action to call off the strike. Mr Fisher was also at the meeting but her Honour said it appears that Mr Fisher "did very little to bring the strike to an end and to ensure the Order was taken seriously". 97 The primary judge was scathing in her assessment of Mr Maher's conduct of the meeting. In substance, her Honour found that he manipulated the meeting by raising the level of anger towards and resentment against BHP Steel to put in the minds of the employees the prospect of further strike action and then driving the meeting "in the opposite direction from one which would result in the end of strike action". The primary judge found: "70. Mr Maher's reference to the Court Order could not have impressed upon the members the Union's unqualified obligation to act in compliance with it and at once. After inflaming his audience he spoke of the Order as a 'legalistic response' which is far from explaining its seriousness. Rather than explaining the obligation to comply with an Order made by a Court, Mr Maher connected it with the company which was to be seen as callously inflicting harm on employees. In that context, the Order was presented as another such action. To say that Mr Maher was paying mere lip service to the CFMEU's obligation to bring the strike to an end may be something of an understatement. 71. In my view, it is usually necessary in proceedings for contempt to consider whether a person or corporate body alleged to have wilfully breached an Order had a motive to do so. One would not expect deliberate breaches of Court Orders, not the least because of the consequences which may follow. In this case, these are strong reasons why Mr Maher and the CFMEU may have decided not to obey the Order. The strike was an important one, as Mr Maher reiterated at several points. It involved a matter of great principle. That was the reason for non-compliance with the Commission's Order. Whilst I accept that the CFMEU and Mr Maher would not take the same view towards compliance with an Order of the Court, because of the different and serious consequences which might follow, it is a strong indicator of the level of importance which was placed on this industrial action. There was also a real problem in calling off the meeting. There was a need to have the meeting, Mr Maher said, although clearly it was not to ensure compliance with the Court Order. There was the need on the part of Mr Maher and the Executive to maintain leadership and authority. I do not think that the influence this was likely to have had should be underestimated. … 77. There is no doubt, in my view, that the CFMEU's conduct at the meeting was designed to, and had the effect of, encouraging the employees not to cease the strike action and to take it further. Mr Maher's words were an active encouragement to continue an expression of anger against the company. One might expect rank and file members to have been seeking guidance from the Executive and the Branch. Their statements before the meeting to persons notifying them of the Order bear this out. It is not difficult to imagine that the address by Mr Maher to the meeting did nothing to lessen the anger which he was determined to keep alive. He took no serious steps to dissuade them from further strike action. If he did speak some words of non-support they were very few. They could hardly have been thought sufficient for that purpose. The members could not have been left in any doubt about Mr Maher's and the CFMEU's lack of sincerity in not supporting the strike. They would have understood they were being encouraged to do so." Her Honour concluded: "83. Mr Maher was told about the Order by Mr Humphreys. He was told that an injunction had been obtained against the Union relating to the price dispute. Given Mr Maher's experience he would have understood that there had been an Order made by the Court prohibiting the strike action. It is not necessary that he be shown to be aware of its full terms: Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535, 538. The CFMEU had not at this point been personally served and it was not served until the following morning, but in these proceedings fines are sought and the embargo of O 37 r 2(1) does not apply: Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110, 113. In any event that rule contains an exception, in the case of notification by other means, such as is recognised by the common law: r 2(5) (and see Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110). It is not necessary to determine whether other members of the Executive were aware. It was Mr Maher's obligation, on behalf of the Union to notify anyone necessary to effect an end to the strike. It is likely that he did so at the conference dinner and that others were then informed. If Mr Fisher was not told earlier, Mr Everill almost certainly would have told him when he spoke to him at 6.48 am. Even at this time he and Mr Maher could have taken steps to bring the strike to an end, as Mr Maher effectively conceded in his evidence. 84. Lodge Officials and members of the Union were waiting for advice from the Executive. Without it they would not act upon BHP Steel's advices about the Order. It was not suggested that there was no action open to the Executive or Mr Maher to put matters in train. Notification was clearly possible. One may observe how promptly the strike had been notified the day before. It would also have been prudent to call off the meeting in the circumstances. The decision to continue with the meeting and the conduct of Mr Maher at it is evidence of a determination, on the part of the CFMEU, to continue the strike action. 85. I am satisfied that the CFMEU through Mr Maher, acted at the meeting in such a way as to ensure a continuation of strike action. The resolution to effect further strike action was in large part the result of that conduct, even if one allows for the expression of some annoyance about service on union officials. It does not seem possible reasonably to draw any other inference, given the course Mr Maher undertook and in the absence of a credible explanation on his part or other evidence providing that explanation. 86. The CFMEU continued the strike action, the ban upon work implicit in it and the authority to members to stop performing work. It procured and authorised members to further do so at the meeting. Charges (a), (b), (c), (d) and (f) are therefore made out. The conduct involved a breach of the Orders to cease the strike and not to continue or take further strike action. It was not only deliberate in the sense referred to in the authorities, it must have resulted from a considered decision. 87. It was suggested by senior counsel for the CFMEU in argument that the Order must be read strictly, in its requirement that the action to be undertaken commence from the time of the making of the Order. Since the CFMEU could not be shown to have knowledge of the terms of the Order from the time it was made, it could not be guilty of contempt and the charges must fail. The Order reasonably construed requires cessation of the strike immediately upon the Union having knowledge of the Order and its restraints continue until the time nominated." 98 It is appropriate, at the outset, to consider what the original order of the primary judge required of the CFMEU. The order of the primary judge 99 The primary judge construed the first injunction as requiring the CFMEU to immediately cease strike action. Her Honour said: "The language of the first injunction here is in strong terms in its requirement to 'cease' and it is plain that some urgency attends the requirement for action in that regard because the CFMEU is to do so 'immediately'. It had a choice as to how it was to end the strike it had started, although some steps are so obvious that they go without saying. The requirements of the Order and the result to be achieved were clear." 100 In reaching that conclusion her Honour relied on the reasoning of Wilcox J in Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees' Union (No 2) (1987) 15 FCR 64. In that case the order restrained the respondent "from maintaining, giving effect to or enforcing any ban …". In a contempt proceeding for breach of the order Wilcox J accepted that a party cannot be committed for contempt on the ground that, upon one of two possible constructions of an order, it had been breached: see Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 515-6. However, Wilcox J (at 72) explained the distinction between such an order and the one he was considering: "However, there is a fundamental difference between an order which is uncertain and an order which, being certain in its meaning, leaves to the addressee a choice as to the manner of compliance …. Provided that the order specifies with certainty the result to be achieved it is not normally for the applicant to suggest, or for the Court to prescribe, a particular method of complying with the order. As Chitty J said in Walthamstow [Attorney-General v Walthamstow Urban Council (1895) 1 TLR 533], 'it was the duty of the defendants to find out the proper means of obeying the order'." 101 Wilcox J held that the order specified what was to be done, by requiring that the Union, its servants and agents, not maintain, give effect to, or enforce any ban which had been imposed before that date. 102 The CFMEU submitted that her Honour erred in construing the order as requiring the CFMEU to take any positive steps. It contended that the order was cast in negative terms, lacked specificity and wrongly assumed the union had the capacity to "cease" the strike action in the sense of compelling employees to return to work. 103 In Australian Industry Group v Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union [2000] FCA 629 ("AIG") at [33] I stated: "Orders of the Court must be in 'clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction' (ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 per Lockhart J). Although it is the duty of a defendant to ascertain the proper means of obeying an order, a defendant will not be committed for contempt where the order is not clear and therefore, on one construction of it, there may not have been a breach. In such cases the breach will not have been established beyond reasonable doubt: see Iberian Trust Ltd v Founders Trust and Investments Co [1932] 2 K.B. 87 at 95, Redwing Ltd v Redwing Forest Products Ltd (1947) 177 L.T. 387, John Fairfax & Sons Pty Ltd v Australian Consolidated Press Ltd (1960) SR (NSW) 413 at 416, Australian Consolidated Press Ltd v Morgan (1964) 112 CLR 483 at 503, 506, 515-516, Re Bramblevale Ltd (1969) 3 All ER 1062 at 1064, Concrete Constructions at 71-72 and Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd (1998) 4 VR 220 at 222-223." 104 If it is intended that positive steps are to be taken under an order it will usually be preferable for the order to specify the steps that are required to be taken. Such an order will limit the scope for argument as to the meaning of the order, what the order requires and whether it has been complied with. The different outcomes of the contempt proceedings against the union (where no steps were specified) and its officers (where steps were specified) in AIG affords a good example of the benefit of specificity. 105 The injunctions ordered by the primary judge clearly and unambiguously required the CFMEU to immediately cease the strike action that it had started, the bans it had imposed, its authorisation to members to stop performing work and not to continue or extend that action, the bans or the authorisation for the purpose of the export coal price dispute ("the proscribed purpose"). It is clear from the terms of the injunctions that their subject matter is industrial action by the unions and that the proscribed purpose is the purpose of the unions in taking that action. The injunctions are not directed at and do not prohibit strike action by the members of the unions nor are the injunctions directed at any purpose of those members in engaging in strike action. 106 I agree with the primary judge's conclusion that the order required the CFMEU to "immediately" take positive steps to bring about a result, namely cessation of the CFMEU's strike action in relation to the export coal price dispute. The CFMEU had a duty to decide how it would take the necessary steps to immediately cease the union's strike action but it was not entitled to do nothing or to delay calling off the strike it had called. In the context of the twenty four hour strike that had already commenced, the word "immediately" was clearly intended, and would be understood by the union, to bear its ordinary dictionary meaning, that is: "without lapse of time, or without delay; instantly; at once." (The Macquarie Dictionary) 107 The CFMEU was not required to procure its members to return to work. Rather, the CFMEU was to immediately take the necessary steps to bring the strike it had called to an end and give appropriate directions to ensure that any bans on work or authorisations to stop work were, likewise, at an end. The orders also restrained the CFMEU from taking, procuring or authorising any further strike action or imposing any further bans for the proscribed purpose. 108 Accordingly, I do not accept the CFMEU's argument that there was ambiguity, uncertainty or lack of specificity in the terms of the order or that it required the CFMEU to bring about a result it could not achieve. The contempt charges 109 BHP Steel's Statement of Charge stated that the CFMEU be fined for its "contempt in failing to comply with the Order" of the primary judge made on 7 February 2000. Paragraph 1 recited the terms of the Court orders but omitted (presumably inadvertently) any reference to the proscribed purpose in para 2 of the orders. Paragraph 2 provided details of some thirty-seven verbal, facsimile and personal service notifications of the terms of the order as well as notification of the order by the broadcast of its terms over local radio. 110 Paragraph 3 of the Statement, relevantly, stated: "3. In breach of the Order, from the time of the making of the Order and continuously thereafter until 4 pm on 9 February 2000, at the Applicant's Tower Colliery, Elouera Colliery, West Cliff Colliery, Appin Colliery and Cordeaux Colliery the Respondent: (a) continued to take strike action for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (b) continued its ban upon employees attending for work and performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (c) continued to authorise members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (d) authorised members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (e) directed members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices; (f) procured members of the Respondents who were employees of the Applicants to stop performing work in accordance with the applicable awards or certified agreements for the purposes of a dispute or disagreement about or concerning negotiations or the outcome of negotiations over export coal prices. The affidavits relied upon by the applicants in relation to these allegations are identified in the particulars below. PARTICULARS OF CHARGE The employees of the Applicant listed below in Schedule A failed to return to work on their appointed shifts as set out in Schedule A because the Respondent: (i) failed to inform such employees that the strike which it had required to begin at the Respondent's said collieries for 24 hours from midnight AEDST on 7 February 2000 had ceased; … (ii) failed, between the time of the said Order was made and 4 pm on 9 February 2000 to inform such employees that they should return to their duties; … (iii) failed to cancel a meeting that had been called for 10 am AEDST on 8 February 2000 at the Wonoona [sic] Bulli RSL Club, for the purposes of the strike; … (iv) by its authorised officer, one Tony Maher, at about 8.30 am AEDST on 8 February 2000 on ABC radio, represented that the strike was continuing in order to 'drive home a message to BHP Steel'; … (v) organised and conducted a union meeting at 10 am AEDST on 8 February 2000 at the Wonoona [sic] Bulli RSL Club, at which a resolution was passed to extend strike action for a further 24 hours from midnight AEDST on 8 February 2000; … (vi) at about 10 am AEDST on 8 February 2000 at the Wonoona [sic] Bulli RSL Club, passed a resolution to extend strike action for a further 24 hours from midnight AEDST on 8 February 2000. …". 111 Schedule A, which appeared under sub-paras (i) and (ii) of the Particulars, described and set out the paragraphs in the Applicant's Affidavits which identified the employees who allegedly failed to return to work (para (i)) or who were not informed that they should return to work (para (ii)). Under each of the other sub-paragraphs particulars were given of the paragraphs of the Applicant's affidavits upon which reliance was being placed. 112 One of the main grounds of the CFMEU's appeal was that the primary judge failed to make findings in respect of the charges as particularised and, to the extent findings were made, it contended that the Particulars could not have constituted a contempt. In substance, the CFMEU submitted it was convicted of a contempt with which it had not been charged. It contended: "In the Statement of Charge in the present matter the charge itself is in the broadest possible terms. The charges are broken into six sub paragraphs each alleging positive conduct on the part of the appellant in breach of the order. The conduct/omissions alleged to constitute the contempt were identified, and only identified, in six particulars of charges. It is not clear to which if any of the sub paragraphs of the charge each particular of charge is directed. It was to the charge as particularized, and only to the charge as particularized, that the appellant was required to and did direct its evidence. Her Honour erroneously failed to make findings with respect to: (a) Whether any of the particulars were established; (b) Which particulars went to establishing which count, if any, of the charge; (c) Whether if established the particulars could constitute contempt of the orders. The particulars of the charge were either not provided (Particulars (i) – (ii) and (vi)), or could not on any view have constituted (and were not found by her Honour to constitute) contempt of the Order (particulars (iii) – (v) inclusive)." 113 The contempt with which a person is charged must be sufficiently explicit in the Statement of Charge, read fairly and as a whole. If it is not, a contempt conviction can be set aside, even if the facts found may have otherwise justified the conviction: see Coward v Stapleton (1953) 90 CLR 573 at 579-580 and Australian Building Construction Employees' and Builders' Labourers' Federation v Minister of State for Industrial Relations (1982) 43 ALR 189 ("the BLF case") at 211-212. 114 As was stated Coward v Stapleton at 579-580 by Williams ACJ, Kitto J and Taylor J: "…it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard; R v Foster; Ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment." See also Doyle v The Commonwealth (1985) 156 CLR 510 at 516. 115 In Concrete Constructions at 73 Wilcox J, in analogous circumstances, discussed the role of particulars in a Statement of Charge: "The second question is whether the statements of charge sufficiently specify the alleged breaches. I think that they do. In each case the charge sets out the relevant orders and then alleges, in positive terms, that the respondent did the enjoined act. In essence, the complaint is that, the respondent being told to refrain from particular conduct, the respondent in fact committed that conduct. This is a clear enough allegation. It is true that, without more, the respondent would not know whether it is the case of the applicant that it carried out some positive act amounting to breach, and if so what act, or whether it is said that there was a contravention by the failure of the respondent to take a positive step necessary to bring to an end the condition of maintaining the ban. But that is the function of particulars; and in each of these cases particulars were included in the charge. In relation to omissions it is difficult to do more than to say that no action was taken. But this is sufficient. The respondent then knows the case it has to meet and that it will be an answer to that part of the case to show, if it can, either that no positive action was, under the circumstances, required or that it did take the relevant step. … In the case of allegations of positive actions in contravention of an order particulars of a charge should inform the recipient of the substance of the case sought to be made. It is not necessary to set out the evidence which will establish that case; that will normally be contained in the affidavits." 116 On appeal in The Plumbers and Gasfitters Employees' Union of Australia v John Holland Constructions Pty Limited (1988) 10 ATPR 40-849 at 49,141 the Full Court observed: "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, it is difficult to do more than to say 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 and clearly to inform the Union of the charges and to give it a 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." 117 In the present case the CFMEU, as it was fully entitled to do, made clear that it was called upon to meet and was meeting the charge as particularised, and not otherwise. When an issue arises as to the sufficiency of the charge, as particularised, the Court is to discern the gist or the substance of the contempt alleged and determine whether that was sufficiently conveyed to the alleged contemnor in the Statement of Charge. 118 The CFMEU's written and oral submissions on the Statement of Charge sought to analyse each sub-paragraph of the Particulars out of context with little regard to the sub-paragraphs of para 3 which were being particularised. Further, little or no regard was had to the various paragraphs of BHP Steel's affidavits which were being relied upon by BHP Steel. In that regard it can be accepted that the affidavit evidence served with the Statement of Charge cannot be relied upon to remedy any deficiency in the Statement of Charge and also that an alleged contemnor cannot be required to extract and cull from the material relied upon or referred to in the Particulars the conduct alleged to constitute the contempt being charged: see Harmsworth v Harmsworth (1987) 1 WLR 1676 at 1683 and 1686. 119 Nonetheless, the test remains whether the gist or substance of that conduct has been sufficiently conveyed in the Statement of Charge to enable the alleged contemnor to meet the charge. While incorporation of documents by reference in the Statement of Charge is, in general, undesirable there is no rule that a document may not be so incorporated. In that regard, Order 40 r 5 provides for an application for punishment for an alleged contempt to be made by motion on notice. Rule 6 provides: "A statement of charge, that is, a statement specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application." 120 Under Rule 8 the affidavit evidence relied upon is to be served with the notice of motion and the statement of charge. 121 In the present case, the procedure of incorporating paragraphs from the affidavits as part of the Particulars appears to have come about as a result of a suggestion by her Honour and does not appear to have been the subject of complaint by the CFMEU. 122 The questions raised by the CFMEU's submissions are whether: · the contempt charged and found to have been established was sufficiently explicit in the Statement of Charge, read fairly and as a whole; · the facts found by the primary judge established beyond reasonable doubt that the CFMEU had engaged in the conduct alleged in the Statement of Charge to have constituted the contempt. 123 Paragraph 1 of the Statement of Charge sets out the orders made by the primary judge. Paragraph 2 sets out the details of the notifications "of the terms" of the order. The notifications, given late in the evening of 7 February and in the early morning hours of 8 February, include an alleged notification of the terms of the order to Mr Maher by telephone late in the evening of 7 February 2000. 124 Paragraph 3 alleges that in breach of the order "from the time of the making of the Order and continuously thereafter until 4 pm on 9 February 2000" at BHP Steel's New South Wales mines: · the CFMEU continued to take the strike action and continued its bans and authorisations to stop performing work for the purpose of its dispute with BHP Steel over coal export prices (sub-paras (a), (b) and (c)); · the CFMEU authorised, directed and procured members to stop performing work for the purpose of that dispute (sub-paras (d), (e) and (f)). 125 The contempt alleged in sub- paras (a), (b) and (c), is alleged to be, inter alia, a breach of the order requiring the CFMEU to immediately cease and not to continue strike action, bans and authorisations for the proscribed purpose. The charge is essentially one of omission or failure to act as required by the order. 126 Subject to a question relating to purpose, the contempt alleged in sub-paras (d), (e) and (f) is alleged to be a breach of the order requiring the CFMEU not to continue strike action, bans and authorisations for the proscribed purpose and to refrain from taking, procuring, advising or authorising any further strike action, bans or authorisations for the proscribed purpose. Although there is some overlap between the two sets of charges, the charges in sub-paras (d), (e) and (f) allege the taking of positive steps in breach of the order prohibiting and restraining such conduct. As explained above the Statement of Charge inadvertently omitted any reference in para 2 of the orders relating to the proscribed purpose. The deficiency in that regard was rectified in the particulars of the contempt charges each of which explicitly referred to the proscribed purpose. 127 It is plain that the reference to purpose in sub-paras (a), (b) and (c) is a reference to the purpose of the CFMEU, and not that of its members. Arguably, there is some ambiguity as to whether the reference to purpose in sub-paras (d), (e) and (f) is a reference to the purpose of the CFMEU or to the purpose of its members. A difficulty confronting an argument that the purpose referred to is that of the members is that it requires that, notwithstanding the identical form the particulars take, the purpose in sub-paras (a), (b) and (c) is to read as the purpose of the unions and the purpose in sub-paras (d), (e) and (f) is to read as the purpose of the members. 128 As explained above the orders were directed at the conduct and purpose of the CFMEU, and not that of its members. Further, the industrial action alleged to have been taken in breach of the orders was that taken by the CFMEU. Finally, a breach of the order based on acts rather than omissions would require action by the CFMEU for the proscribed purpose. In that context, a fair reading of the relevant paragraphs as a whole demonstrates that the purpose being referred to in all of the sub-paragraphs is that of the CFMEU. Any doubt about that matter is resolved by the particulars that were provided of the positive steps allegedly taken in breach of the order by the CFMEU (in sub-paras (iv), (v) and (vi) of the Particulars) which all refer to conduct of the CFMEU or of its officers without any reference to the conduct or purpose of its members. 129 Accordingly, I am satisfied that the charges relate, and would be taken by the CFMEU to relate, only to acts or omissions to act, for the proscribed purpose, by the CFMEU or by its officers. 130 Particulars (i) and (ii) specify a failure to inform the relevant employees that the strike had ceased and that they should return to their duties. The paragraphs in the affidavits referred to as part of the particulars are to the effect that notwithstanding the Court order the employees referred to did not return to work on their appointed shifts. 131 On a fair reading of the Statement of Charge as a whole the gist or substance of the breach alleged in paras 3(a), (b) and (c) and in sub-paras (i) and (ii) of the Particulars is the breach by CFMEU, as from the making of the order, of continuing its existing strike action, bans, and stop work authorisations to its members by failing to immediately cease the action, the bans and the authorisations. The breach found and declared by the primary judge that is relevant to that charge is the CFMEU's conduct of "continuing strike action and authorising its members to stop performing work". In my view that contempt, in respect of which the CFMEU was convicted, was sufficiently explicit in the Statement of Charge. 132 The main findings of the primary judge were summarised earlier in these reasons. Her Honour found that, as from shortly before 11 pm on 7 February, Mr Maher was aware of the Court order and, at the latest, by 5.00 am on 8 February he was aware that it required the cessation of the CFMEU's strike action. Her Honour also found that, at the latest, by shortly prior to 7.00 am on 8 February Mr Fisher (a member of the Central Executive in a position to comply with the order) was also aware of the order. Messrs Maher and Fisher took no immediate action to bring the strike to an end and for so long as Mr Maher and Mr Fisher did not act to call an end to the strike, as they were well aware, it continued. Her Honour noted that Mr Maher effectively conceded in his evidence that from 8.48 am on 8 February he could have taken steps to bring the strike to an end. A breach of omission to act in the manner required by the orders was clearly established by those findings. 133 The CFMEU's defence was that the strike was called off by Messrs Maher and Fisher at the meeting of members of the union on 8 February. On the finding made by her Honour that there was a failure to immediately cease strike action the acceptance of that defence would not have the consequence that the orders were not breached. Rather, they may have the consequence that the breach was not a wilful or serious breach so that there was either no contempt or, if there was, it did not warrant punishment. Her Honour, however, rejected the defence. 134 The primary judge accepted that Messrs Maher and Fisher said to the meeting that, as a result of the Court order, the employees were required to return to work. However, after having regard to the context in which the statements were made and to, inter alia, her view that the CFMEU's conduct at the meeting was designed to encourage the workers not to cease strike action, her Honour concluded that to say what occurred "was paying mere lip service to the CFMEU's obligation to bring the strike to an end may be something of an understatement". Her Honour found that Mr Maher's conduct at the meeting evidenced "a determination, on the part of the CFMEU, to continue the strike action". Her Honour said that the members attending the meeting "could not have been left in any doubt about Mr Maher's and the CFMEU's lack of sincerity in not supporting the strike. They would have understood they were being encouraged to do so". 135 It was open to the primary judge to conclude that the conduct of Messrs Maher and Fisher at the meeting fell short of taking steps to bring the strike called by the CFMEU to an end. Thus, her Honour's findings, which were open to her on the evidence, amply supported the conclusion that she was satisfied beyond reasonable doubt that the charge of contempt in paras 3(a), (b) and (c), as particularised in sub-paras (i) and (ii) of the Particulars, had been made out. Accordingly, BHP Steel was entitled to a declaration that the CFMEU breached the Court order by "continuing the strike action and its authorisation to members to stop performing work". 136 As explained above the contempt alleged in paras 3(d), (e) and (f), as particularised in sub-paras (v) and (vi) of the Particulars, is that the order of the primary judge was breached by the CFMEU, for the proscribed purpose, authorising, directing and procuring members employed at BHP Steel's New South Wales mines to extend strike action for a further 24 hours from midnight on 8 February 2000. The particulars are to the effect that the CFMEU organised and conducted a union meeting which resolved "to extend strike action for a further 24 hours from midnight … on 8 February 2000". The plain implication is that the CFMEU breached the order as: · it had organised and conducted the meeting which authorised, directed or procured the extension of "strike action"; · that conduct was engaged in by the CFMEU for the proscribed purpose. 137 In my view, the gist or substance of the contempt alleged was made sufficiently explicit in the Statement of Charge, as particularised, without the necessity of resorting to the paragraphs of the affidavits specified in the Particulars. In any event, reference to those paragraphs adds little to the particulars already given. The most that can be said is that the Affidavit material referred to, which exhibits a transcript of proceedings before the Industrial Relations Commission, shows that: · the extension of the strike was alleged by the CFMEU to be in protest against BHP Steel's harassment and intimidation of its workers when it informed them of the Court orders; · BHP Steel contended, but the CFMEU disputed, that the extension breached the Court order and the union's reliance upon extension of the strike as being for a purpose other than the proscribed purpose was misplaced. 138 The breach of the Court order found and declared by the primary judge that is relevant to the charge in paras 3(d), (e) and (f) is the conduct of the CFMEU in "procuring and authorising its members to take further strike action". For the reasons set out above the conduct alleged to constitute that contempt was sufficiently explicit in the Statement of Charge. The CFMEU has not demonstrated that it was not allowed a reasonable opportunity of being heard in defence of that charge. 139 The CFMEU, as it was fully entitled to do, elected to file an affidavit by Mr Maher and rely upon her Honour's acceptance or rejection of his evidence in defence of the charges. The affidavit was to the effect that Messrs Maher and Fisher directed members to return to work but that the members, acting on their own initiative, resolved that a 24 hour stoppage take place from midnight "due to the harassment and intimidation towards our elected union officials… by BHP Management". If Mr Maher's evidence was accepted it constituted a complete defence to the contempt charged in sub-paras (d), (e) and (f). 140 The concern I have with this aspect of the appeal is whether the findings of the primary judge supported the declaratory relief her Honour granted, or whether they amounted to a finding that Mr Maher's, or the CFMEU's, conduct of the meeting of 8 February was calculated to defeat or frustrate the effect of the Court order (see Seaward v Paterson (1897) 1 Ch 545), a contempt that was not specified in the Statement of Charge. 141 The declaratory relief granted in respect of the CFMEU's conduct at the meeting on 8 February, which was based primarily on Mr Maher's conduct, was that the CFMEU procured and authorised the members to extend the existing strike. Of course, for that conduct to have breached the orders it must have been engaged in by the CFMEU for the proscribed purpose. 142 Although it is clear that the primary judge found that the steps taken by Messrs Maher and Fisher at the meeting fell short of bringing the strike action called by the CFMEU to an end, whether her Honour found that, for the proscribed purpose, they procured and authorised an extension of the CFMEU's strike action is not quite as clear. The relevant findings, therefore, are those relating to the conduct and purpose of Mr Maher at the meeting, rather than findings in relation to the conduct and purpose of the members attending the meeting. Relevantly, her Honour made the following findings (the emphasis added is mine): · Mr Maher: "…spoke of the current and highly volatile issue of coal prices, which was the basis for the current strike action. An obvious purpose of a meeting in these circumstances is to determine what action is now to be taken. Members of the Union would be waiting for guidance from the Executive and Mr Maher in particular." [63] · "I find it impossible to view the report of issues relating to BHP, the first matters drawn to the members attention, as serving some pacifying purpose…The resolution Mr Maher brought to the meeting would also have solidified anger and resentment towards the company and put in the minds of the employees present the prospect of further strike action… It was submitted that one should not regard the reference in the resolution to the giving of mandate for further action to the Union as referrable to the resolution for further strike action which is said to have come shortly afterwards from the floor. I accept that that might be the case. It seems to me however that Mr Maher was driving the meeting in the opposite direction from one which would result in the end of strike action. I am only able to infer that the undertaking of that course of action was the result of a determination that the CFMEU prevail against the company." [69] · One of Mr Maher's motives at the meeting was: "the need on the part of Mr Maher and the Executive to maintain leadership and authority. I do not think that the influence this was likely to have had should be underestimated." [71] · After the meeting Mr Maher said words to the effect that the workers had expressed their anger at BHP's betrayal of them and that "the future of the district is at the core of their anger at this meeting". Her Honour regarded the statements as relating to the export coal price dispute and said they were "relevant to the question of the true purpose of the further strike" [73]-[74]. · On the purpose of the further strike action: "…It is, in my view, clear that the issue of coal prices was an important one at the meeting and that it explained much of the anger which drove the employees to determine upon this course of action. Mr Maher's own statements confirm this. The inescapable conclusion is that the strike action was directed at this even if it was also a response to the notification and service of the Orders….It is likely, in my view, that it was recognised by some persons present at the meeting that any further strike action must be distanced from the prohibited purpose…." [76] · "There is no doubt, in my view, that the CFMEU's conduct at the meeting was designed to, and had the effect of, encouraging the employees not to cease the strike action and to take it further. Mr Maher's words were an active encouragement to continue an expression of anger against the company. …It is not difficult to imagine that the address by Mr Maher to the meeting did nothing to lessen the anger he was determined to keep alive. He took no serious steps to dissuade them from further strike action. If he did speak some words of non-support they were very few. They could hardly have been thought sufficient for that purpose. The members could not have been left in any doubt about Mr Maher's and the CFMEU's lack of sincerity in not supporting the strike. They would have understood they were being encouraged to do so." [77] · "The decision to continue with the meeting and the conduct of Mr Maher at it is evidence of a determination, on the part of CFMEU, to continue the strike action." [84] · "I am satisfied that the CFMEU through Mr Maher, acted at the meeting in such a way as to ensure a continuation of strike action. The resolution to effect further strike action was in large part the result of that conduct, even if one allows for the expression of some annoyance about service on union officials." [85] 143 I have set out the main findings of the primary judge on this issue in detail because of my concern as to whether her Honour was satisfied beyond reasonable doubt that Mr Maher, acting on behalf of the CFMEU, for the proscribed purpose procured and authorised an extension of "strike action" or whether, in an endeavour to defeat or frustrate the orders, he procured and authorised a new strike for a different purpose. Her Honour's findings appear to have been directed at both questions. A fair summary of her Honour's findings is that she was satisfied beyond reasonable doubt that: · Mr Maher's purpose in conducting the meeting was to continue and extend strike action by procuring the workers to resolve to strike in protest at BHP Steel's harassment and intimidation of union members and officials; · in truth, Mr Maher procured the workers to direct their anger and the strike at BHP Steel's conduct in relation to the coal export price dispute "even if it was also a response to the notification and service of the orders"; · Mr Maher breached the Court order by procuring the extension of strike action for purposes that included the export coal price dispute. 144 The findings to which I have referred, including those relating to Mr Maher's purpose, were open to her Honour on the evidence and supported her conclusion that she was satisfied beyond reasonable doubt that the charge of contempt in para 3(d), as particularised in sub-paras (vi) and (vi) of the Particulars, had been made out. It follows that BHP Steel was entitled to a declaration that the CFMEU breached the Court order by "procuring…its members to take further strike action". To the extent her Honour may be taken to have also held that the purpose of the members in resolving to strike included the proscribed purpose, I would have difficulty in concluding that such a finding was reasonably open on the evidence. However, for the reasons outlined above the purpose of the members was not an element of the conduct alleged in the Statement of Charge to have breached the orders and was therefore not a relevant issue. 145 The basis for the declaration that Mr Maher's conduct also authorised the members to extend strike action is more problematic. The findings against Mr Maher on this issue were based on the same conduct. Her Honour, however, did not appear to address the legal and factual complexity of whether what occurred was capable of constituting an authorisation by the CFMEU to its members to extend strike action by the members. 146 I have concluded that it is appropriate to allow the appeal in part on this limited issue. I have arrived at that conclusion as I doubt that her Honour's findings extended to authorisation and that doubt ought to be resolved in favour of the CFMEU. For the above reasons, it is appropriate to excise from the declaration made by her Honour the words "and authorised". I would add that, in the present case, whether the conduct in question breached two aspects, or only one aspect, of the Court order is not of significance to the nature of the contempt committed or the appropriate penalty. 147 It follows that, save for one aspect of no real consequence, in my view the CFMEU has failed in its appeal in relation to the Statement of Charge and whether her Honour's findings were sufficient to establish the contempt charged. Inferences 148 The CFMEU did not challenge the primary facts found by the primary judge. Rather, it contended that her Honour erred in drawing inferences adverse to the CFMEU on the basis of those findings. The CFMEU contended that, as it did not challenge the primary findings of fact, the Full Court is in as good a position as the trial judge to decide on the proper inferences to be drawn from them. 149 The adverse inferences drawn by her Honour were based, in part, on her rejection of critical aspects of Mr Maher's evidence and her Honour's adverse impressions of Mr Maher as a witness. In that regard her Honour found that Mr Maher was "false in his denials of knowledge and of communications" concerning the Court orders and was not "bona fides" in his conduct of the meeting of 8 February. As explained above, that led her Honour to hold that Mr Maher's conduct of the meeting on 8 February was designed to, and had the effect of, encouraging BHP Steel's employees not to cease, but rather to extend, strike action by them. 150 A further difficulty confronting the CFMEU's submissions is the need for appellate caution before reversing a trial judge's evaluation of the facts. As the Full Court said in Esso Australia Resources Ltd v Commissioner of Taxation (1998) 84 FCR 541 at 554: "…even in cases where the primary facts are not in dispute and the trial judge's evaluation of the facts does not depend on an assessment of the credibility of witnesses there is nevertheless a need for appellate caution in reversing the trial judge's evaluation of the facts. As was said recently by Lord Hoffmann (with the agreement of all other members of the House of Lords) in Biogen Inc v Medeva plc [1997] RPC 1 at 45: 'The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'" 151 The primary judge explained her general approach to the inferences she was entitled to draw at [78]-[79]: "78. In my consideration of the evidence I have drawn inferences which do not assist the CFMEU. In many cases, no evidence to the contrary was put forward to dispel a possible inference. The witnesses in question were available. If one was overseas, arrangements could have been made for the reception of his evidence. I am therefore somewhat fortified in my view that the inferences I have drawn are likely to be correct. It was submitted by senior counsel for the CFMEU that the Court is not in a position to draw any inferences about aspects of the evidence for the reason that a number of witnesses to the events in question, indeed directly involved in them, were not called by it. Reliance was sought to be placed upon cases concerning inferences available where an accused has not given evidence. It was then submitted that since the CFMEU did elect to give some evidence, no such adverse inference was possible. I do not consider this to be a correct approach. The question is not whether an inference of guilt may be drawn, as sometimes arises in criminal cases. It is whether inferences are available from the evidence presented which may be confirmed to an extent by a failure to rebut them by calling available witnesses. 79. The rule in Jones v Dunkel (1959) 101 CLR 298 requires that there be inferences available from the evidence which favour the other party. The failure of the CFMEU to call evidence in these circumstances does not provide positive evidence of a fact or circumstance, but, unexplained, leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel, 308; Minister for Aboriginal & Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40, 62. It was also submitted, in connection with the application of the rule, that BHP Steel could have called the witnesses in question. I do not accept the submission. The rule looks to the party who might reasonably be expected to call the witness in question in their case." 152 The CFMEU contended that her Honour's reliance on Jones v Dunkel (1959) 101 CLR 298 ("Jones v Dunkel") was misplaced. In particular, it submitted: · the inferences her Honour drew from the extensive telephone conversations between union officials, particularly in the early morning hours of 8 February, were wrongly drawn; · her Honour ought not to have been "fortified" in drawing adverse conclusions against the CFMEU's case by its failure to call certain witnesses. 153 As was recently emphasised in RPS v The Queen (2000) 199 CLR 620 at 631-632 ("RPS") drawing inferences from proved facts is "plain commonsense". That is no less so in a criminal matter, although a Jones v Dunkel inference ought only to be drawn in a criminal matter after taking into account the onus on the prosecution to prove its case beyond reasonable doubt without the accused being bound to give evidence (see RPS at 633). As was observed by the primary judge, this qualification is not relevant in the present case as Mr Maher, in his capacity as General President of the Central Executive of the CFMEU, elected to give evidence. 154 In response to Mr Maher's statement that he only became aware of the Court order at about 9.30 am on 8 February, BHP Steel adduced evidence of extensive telephone communications between union officials late into the night of 7 February and early in the morning of 8 February. Almost all of the conversations occurred after the Court order, out of normal working hours, and involved CFMEU officials who could be expected to be concerned with the CFMEU's response to the Court order. They included telephone communications between Mr Maher and CFMEU officials and telephone communications between those officials and other CFMEU officials. No satisfactory explanation was given by Mr Maher as to the content of the calls. The CFMEU did not call any official who participated in the calls, other than Mr Maher, although it was well aware that BHP Steel was inviting the Court to draw the inference that the calls were concerned with the CFMEU's response to the Court order. In those circumstances, it was open to her Honour to rely upon the calls, together with other evidence, to infer that Mr Maher's denials of knowledge of the Court order prior to 9.30 am on 8 February were false. I would add that on the basis of the findings her Honour had made and the reasons she gave for those findings, it was "plain commonsense" for her Honour to do so. 155 The primary judge, in reliance on Jones v Dunkel, was fortified in making those adverse findings. Jones v Dunkel looks to the party who might reasonably be expected to call a witness who would ordinarily be expected to shed light on the subject in question: see RPS at 632. A critical matter in issue related to the time at which Mr Maher became aware of the Court order. A number of the union officials participating in the various telephone conversations would be expected to be able to shed light on that issue but they were not called by the Union. The failure to call any of those officials plainly falls within the principles enunciated in Jones v Dunkel. In my view her Honour did not erroneously state or apply the principles she discussed. 156 Her Honour also drew certain inferences in arriving at her finding that Mr Maher was not bona fides in his conduct of the meeting on 8 February [[61]-[77]]. The finding, including the inferences upon which the finding was based, was plainly open on the evidence and, as with her Honour's findings concerning Mr Maher's knowledge of the Court order, were carefully explained and reasoned by her and have not been shown to be erroneous. 157 Accordingly, the grounds of appeal based on the inferences drawn by the primary judge have not been made out. Reasonable apprehension of bias 158 The CFMEU also claimed that the primary judge erred in law in not acceding to its application that she should disqualify herself from hearing the matter on the grounds that certain statements made by her had given rise to a reasonable apprehension of bias. The statements relied upon were made on the first day of the hearing of the contempt application, which had been case managed by her Honour. They were in the following passages of the transcript: "HER HONOUR: I've got no particular view, I hasten to add, about anyone. It's not at all clear to me what part anyone in particular played in relation to this. The only thing that it is apparent is that the order was breached. Now we have to deal with how that came about and what steps were taken. MR KENZIE: Well, your Honour ‑ ‑ ‑ HER HONOUR: I appreciate your arguments about the terms of the order and I'll hear from you in relation to that. MR KENZIE: Yes, well, can I say that ‑ ‑ ‑ HER HONOUR: I appreciate that you've got legal technical arguments about whether or not there was an obligation to do anything. That's really what you're referring to now. MR KENZIE: Yes, it is. HER HONOUR: But it is the case that the order said discontinue strike and the strike continued; that's all I'm referring to. MR KENZIE: I know, your Honour, but there are substantial arguments about that flowing from recent ‑ ‑ ‑ HER HONOUR: All I'm saying is that the order said discontinue strike and the strike continued. I'm saying no more than that. I'm conscious of the argument set out in your outline but I'm concerned that someone might be unwittingly putting themselves in a position where they could be exposed to difficulties later. MR KENZIE: Well, your Honour, I must say I am concerned at what your Honour just said. There is a substantial argument about breach of the order. HER HONOUR: I appreciate that. I've read your submissions; I've said that. But at a very simple level the order said discontinue and there was a continuation or a separate strike. There's another argument about whether or not it was a strike for a different purpose. I appreciate all of that. I'm not giving a concluded view about the legal outcome. I'm saying at a factual level a strike continued, that's all. MR KENZIE: Yes. Can your Honour just pardon me a moment? Your Honour, I seek a short adjournment to deal with that matter, only a brief adjournment. HER HONOUR: Yes, certainly." 159 After requesting a short adjournment senior counsel for the CFMEU announced that he had been instructed to ask her Honour not to sit further in the matter as her statements that the Court order had been breached might give rise to a reasonable apprehension of bias. In the course of dealing with that application the primary judge explained her use of the word "breached' in relation to the order as follows: "…I can understand lawyers having a concern that a judge is actually using the legal conclusion whereas it is painfully clear to me that what the order required to be done as I said was not – that was not the outcome reached, and certainly in relation to the material, there seems to be some argument. But as I've said, beyond that I have not got a full grip on the facts and I'm aware and have read your submissions in relation to the meaning of the order and I am open to persuasion on all those matters." 160 The primary judge refused the application of the CFMEU and said that she did not propose to disqualify herself. The CFMEU is appealing against that refusal. 161 The CFMEU contended that the primary judge's comments involved an unequivocal conclusion that her order had been breached, a matter critical to the outcome of the proceeding. BHP Steel disputed that contention. Relying upon the context in which her Honour's remarks were made, BHP Steel contended that it was clear that her Honour was merely expressing her preliminary view that the desired result of the Court order had not been achieved, as the strike had continued. 162 The category of apprehended bias raised by the CFMEU's application to her Honour is that of a reasonable apprehension of bias by prejudgment. The underlying principle, which is now well established, is: "that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." (Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at 293-4) The apprehension referred to is that of the "reasonable observer" who is - "presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality." (Livesey at 299). In Re JRL, ex parte CJL (1986) 161 CLR 342 at 352 Mason J (as he then was) said: "It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. …In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." 163 These principles were recently restated in Johnson v Johnson (2000) 201 CLR 488 at 492 by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ: "…the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." 164 In the course of considering observations made by a judge in the course of a hearing, their Honours said (at 493). "… the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly… Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.'… Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them." 165 Their Honours also pointed out (at 494) that it is not reasonable to isolate certain words used by a judge from their context and then proceed to parse and analyse their meaning in order to establish that they might have created the impression that the judge has already pre-determined a critical issue in the case. If her Honour's observations about a "knowing contempt" or a "knowing breach" of her order are removed from their context they might well create an impression of prejudgment in the reasonable bystander. However, when the context and the totality of the relevant passages are considered a quite different impression emerges. Her Honour's initial comments expressed concern that witnesses be made aware that the Court was taking the contempt proceeding very seriously and any person "who did take part in a knowing breach of the orders" might themselves be dealt with for contempt notwithstanding that BHP Steel had not joined that person as a party. Her Honour hastened to add, however, that she had "no particular view" as to the part anyone had played in the matter but, as it was apparent that the order was breached, the Court had to deal with how that came about and what steps were taken. The primary judge later explained that she used "breached" in the sense that the order said "discontinue the strike" and a strike continued, although her Honour accepted there was an argument about whether it was a strike for a different purpose. In that context her Honour said that she had not expressed a "concluded view about the legal outcome". Rather, she had been saying that "at a factual level a strike continued". Later, her Honour re-iterated that, although the outcome sought by the order (ie cessation of the strike) had not been achieved, she did not have a "full grip on the facts" and was "open to persuasion" on the matters raised by the CFMEU in its submissions. 166 In my view the fair minded lay observer would reasonably apprehend that the views expressed by her Honour were that, in so far as the strike had not ceased, prima facie, the Court order appears to have not been complied with, but that that was only a tentative view as she did not have a "full grip" on the facts and was open to persuasion on the issues raised in the submissions of the CFMEU. In these circumstances, a fair-minded lay observer would not reasonably apprehend that her Honour might not bring an impartial and unprejudiced mind to the resolution of the questions she was required to decide. 167 Accordingly, the appeal by the CFMEU on this ground must fail. Penalty 168 The CFMEU instituted a separate appeal on penalty. The CFMEU's main contention was that the primary judge erred in imposing a penalty of $200,000 in respect of conduct that was qualitatively different to the conduct that constituted the contempt. It also claimed that, as a result of erroneous findings made by her Honour, she regarded the contempt committed by the CFMEU to be more serious than was warranted. 169 The difficulty with the CFMEU's submissions in relation to her Honour's findings is that they substantially overlap with a number of submissions that I have rejected in respect of her Honour's findings in relation to the CFMEU's conviction for contempt. As a consequence, the submissions did not face up to the seriousness of the contempt with which the CFMEU had been charged and convicted. 170 In substance, the primary judge found that the CFMEU, acting in its own interests substantially through its President, Mr Maher, wilfully disobeyed the Court order by not only continuing the strike but by procuring an extension of strike action in respect of the New South Wales mines. The extension of the strike was found to have been brought about by Mr Maher's manipulation of the meeting of employees held on 8 February for the proscribed purpose. The observations made by her Honour, in explaining why she considered the contempt to be "especially serious", included: · the CFMEU, through officers of the highest level, acted cynically in encouraging its members not to comply with the Court order; · the CFMEU's officers determined from the outset "not to permit or encourage compliance with the order"; · "[k]nowing full well of the seriousness of non-compliance with an order", the union engaged in "calculated and devious attempts to disguise any knowledge of the order's existence" and even then it "persisted with a deliberate disregard of the order"; · the CFMEU breached the order as "maintenance of the strike action was considered more important than compliance with a Court order"; · the denial of the existence of the order was "dishonest and cynical, as was the conduct of these proceedings". 171 Save for the observation concerning the CFMEU's conduct of the proceedings before the primary judge, the other observations made by her Honour were a qualitative assessment or evaluation by her of the conduct she found constituted the contempt committed by the CFMEU, of the motivation of the CFMEU for engaging in that conduct, and of the contemporaneous surrounding circumstances. It has not been established that her Honour's conclusions were not open to her on the evidence and, in so far as the observations related to the conduct of the union and its officials on 7 and 8 February, they amply justified her Honour's conclusion that the contempt was "especially serious" and called for a penalty to be imposed that acted as a deterrent and made it plain that such approaches are to be "condemned". 172 The CFMEU contended that her Honour, in part, punished the CFMEU for determining "not to permit" compliance with the order, a contempt with which the CFMEU had not been charged or convicted. When her Honour's observation in that regard is read in context it is clear that the determination her Honour was referring to was the determination of the CFMEU, through its officers, to act in a manner that would ensure that there was no prospect that the order would be obeyed in respect of the New South Wales mines. That determination was not a new or further contempt; rather, it was one of the bases for her finding that the CFMEU had acted wilfully in breaching the Court order. Further, the statement that the CFMEU would not "permit" its members to comply with the order appears to be the consequence of her Honour's finding that the strike had not ceased. The consequence of the strike not ceasing is that the bans for workers attending for work during the strike continued. 173 Accordingly, I do not accept that the CFMEU was punished for conduct that was qualitatively different to the conduct that constituted the contempt. Rather, in punishing the CFMEU for the contempt with which it had been charged and convicted, her Honour, correctly in my view, had regard to the conduct in question and the relevant surrounding circumstances. 174 There is a question as to the relevance of the union's conduct of its defence to the contempt charge. While it may be accepted that a sentencing court in a criminal proceeding may have regard to the conduct of the offender at or in connection with the trial as an indication of remorse or lack of remorse (see, for example, Sentencing Act 1991 (Vic) s 5(2C), and the Crimes Act 1914 (Cth) s 16A(2)(f)), it has been said to be axiomatic that "neither a refusal by an accused person to admit an alleged offence, nor a plea of not guilty, nor even the telling of a deliberate lie by way of the maintenance of a claim of innocence, can properly be treated as aggravatory, for the purpose of penalty, in the event that a finding of guilt is ultimately made": see Hanneberry v Legal Ombudsman [1998] VSC 142 at [21], R v Gray [1977] VR 225 at 231, and Cho Hung Yam (1991) 55 A Crim R 116 at 117. 175 Little turns on this issue as it does not appear to have been relied upon by the CFMEU and, in any event, I am not satisfied that the primary judge treated the union's conduct of the proceeding as an "aggravatory" factor in relation to penalty. 176 The CFMEU also criticised the primary judge's failure to take into account a number of factors in determining penalty. Those factors were said to be no previous convictions; the order had been complied with in respect of the Queensland mines; the contempt was of short duration; no injury was suffered by BHP Steel; no meaningful apology could be expected to be proffered prior to appeal; there was no public defiance of the order; and the circumstances in which the order was brought to the attention of the CFMEU officers, particularly Mr Maher. 177 There is no substance in the CFMEU's submissions on this issue. In so far as the matters relied upon were relevant to the question of penalty I am not satisfied that, on a fair reading of her Honour's reasons, she failed to consider those matters. Rather, it appears that her Honour gave them such weight as she considered appropriate in the particular circumstances of the present case. In any event, the factors relied upon by the CFMEU do not undermine the critical finding of her Honour, for the reasons she gave, that the contempt was "especially serious" and warranted a substantial penalty. 178 I would add that the CFMEU's submissions fail to have regard to a number of matters, including: · it was plainly open to her Honour to regard compliance with the order in relation to the Queensland mines as not being relevant to penalty in respect of the wilful breach of the order in relation to the New South Wales mines; · in any event, it does not follow from the fact that the CFMEU was not prosecuted for contempt in respect of the Queensland mines that it did not breach the Court order in respect of those mines; it may well be that the CFMEU's conduct in calling off the strike at those mines, whether it did so "immediately" or not, did not warrant a contempt proceeding or alternatively, was no more than a technical contempt that did not warrant punishment; · the short period in which the order was to operate made more, rather than less, immediate the need for action by the CFMEU to respond to it; · it is far from clear that BHP Steel suffered no injury or loss; · exercising a right of appeal against conviction for contempt need not be inconsistent with the proffering of a genuine apology; · there was "public defiance" in the sense that the CFMEU's conduct found to be in contempt was intended to and did create the impression in public that the strike action at the New South Wales mines had not ceased. 179 The seriousness with which her Honour regarded the contempt and the purposes for which she imposed the fine of $200,000 meant it was well within the range of penalties that were appropriate and open to her to impose. I would add that even if, contrary to my view, it had been established that her Honour erred in some minor respect, and the quantum of the penalty become a matter for the Full Court, I would regard a penalty of $200,000 as appropriate in any event. In that regard it is appropriate to repeat certain observations I made in AIG (at [78]-[81]), in response to a submission that certain breaches of a Court order by senior union officials were only "technical" breaches: "Unions have sought, and obtained, injunctive relief from the Court to protect the rights conferred under [the Workplace Relations Act 1996 (Cth)] in respect of employees: see for example Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430. I pointed out in ACI Operations Pty Ltd at [63] that there is no special rule relating to injunctive relief in industrial disputes or actions. Plainly, the protection of legal rights is severely undermined if parties to a dispute act on the basis that they can apply for court orders to protect their rights, but ignore court orders which protect the rights of other parties to the dispute, simply because compliance with such orders is seen to be adverse to their interests or objectives, or that of their members. The rule of law in a democratic society does not permit any member of that society, no matter how powerful, to pick and choose the laws or court orders that are to be observed and those that are not. Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes (Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641 at [1] per Hayne J), it also requires that parties comply with the orders made by the courts in determining those disputes. If the individual respondents believed that the orders of Whitlam J were wrongly made, then it was open to them to appeal, or apply for leave to appeal, against those orders. Instead, they breached them. The fact that the breaches are by union leaders holding important offices in a federation of national trade unions makes them more, rather than less, serious: see Gallagher v Durack (1983) 152 CLR 238 at 244. If such breaches are treated as no more than 'technical' breaches, then the carefully prescribed processes provided for under the Act, available to, or to be observed by, unions, employees, employers and employer organisations alike, will quickly erode. Also, if aspects of the statutory scheme or of the orders made by Whitlam J were seen to be contentious, the political and legal processes of our democratic society provide remedies other than those chosen by the individual respondents." 180 Putting to one side the indemnity costs order, with which I will shortly deal, for the above reasons the CFMEU has not made out its grounds of appeal in relation to penalty. Indemnity costs 181 When the primary judge handed down her initial judgment convicting the CFMEU of contempt, without having heard the parties on the question of costs, her Honour ordered that the CFMEU pay BHP Steel's taxed costs of the proceeding. Subsequently, BHP Steel sought an order that her Honour vacate that order and replace it with an order for indemnity costs in its favour. For reasons that need not be explored for present purposes, the original costs order was entered but was subsequently set aside by her Honour. Her Honour, however, acceded to BHP Steel's application and vacated her original costs order and replaced it with an order that the CFMEU pay BHP Steel's "costs of the whole of the proceedings, such costs to be taxed on an indemnity basis". 182 The CFMEU claims that her Honour erred in making those orders and, if they stand, in failing to take the burden of the costs order into account on the issue of penalty. 183 The primary judge said she would vacate her original costs order because: · the basis upon which costs should be taxed had not been raised or argued before her; · although the application for indemnity costs had not been foreshadowed by BHP Steel such an application would have had to await findings in relation to the conduct of the CFMEU before meaningful submissions could be made on the question of indemnity costs; · her Honour had not forewarned the parties that final orders, as distinct from findings, would be made at the conclusion of her reasons for judgment on the issue of whether contempt had been committed. 184 The question of vacating the original costs order was a matter of discretion for the primary judge. The reasons her Honour gave for vacating the order are compelling and no error of principle has been demonstrated in relation to the exercise of her discretion. 185 Her Honour's reasons for granting indemnity costs were expressed by her as follows: "Parties who prosecute contempt cases are often recognised as performing a public duty and an order for indemnity costs is made so that they will not be out of pocket because they have undertaken that role. This is such a case. And it is a case where the applicant was put to considerable expense in adducing evidence and piecing together what occurred because of the decision made by the respondent not to explain the events which took place and to call only one witness in answer to the charges. There are strong reasons why the applicant should have its order for indemnity costs in relation to the proceedings culminating in the declaration, as well as the penalty and costs proceedings. In relation to the points raised by the respondent, I add only the following: the applicant was almost entirely successful in its prosecution. This is not a case for dealing separately with charges made out. It acted properly, in my view, in putting forward the evidence relating to the conduct of the respondent in Queensland and could not have been expected to think, if it is realistic in hindsight, that the facts would have been agreed to in whole or in part. In any event, this is a matter for the taxing officer to assess on account of reasonableness. The applicant conceded, in light of one of the respondent's contentions, that the order for indemnity costs should carry the rider that it is not to include costs unreasonably incurred. Such an order was made in Degmam v Wright. I would not have thought a taxing officer needed this reminder." 186 The question of costs was also a matter of discretion for her Honour. Save for one aspect of that order, I am not satisfied that any error has been demonstrated in relation to the exercise of the discretion. The aspect, about which I have some concern, was her Honour's decision to leave the issue of reasonableness to the taxing officer. In North Australian Aboriginal Legal Aid Services Inc v Bradley [2001] FCA 908 at [90]-[92] Wilcox J made the following observations on the appropriate form of an order for indemnity costs in a contempt proceeding: "I am prepared to make an order for costs in favour of NAALAS against Mr Burke; but not on an indemnity basis. I have an aversion to orders for indemnity costs. I expressed my view in Coshott v Learoyd [1999] FCA 276 at para 51 in these words: '… one of the difficulties about an order for indemnity costs is its open-ended nature. Because the underlying concept is one of indemnity, the order allows recovery even of costs that have been unreasonably incurred, or incurred in an unreasonable amount. The Court will rarely know whether such costs have been incurred. So the Court risks making an order that is unreasonable in effect. This is not a proper course to take, even as a response to unreasonable behaviour on the other side.' Callinan J, of the High Court of Australia, recently expressed a similar view in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 at para 40. In Coshott v Learoyd I made a costs order that was modelled on that of the Full Court in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151. That order allowed recovery of 'all costs except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, (the successful party) will be completely indemnified by (the unsuccessful party)'. I propose to make a similar order in this case." 187 I respectfully agree with his Honour's observations. In my view her Honour's order for indemnity costs should have specifically dealt with the issue of reasonableness. Accordingly, it is appropriate to allow the appeal in part on this issue and replace her Honour's order for indemnity costs with the form of order made by the Full Court in Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1997) 72 FCR 151 at 159 ("Re Wilcox"). 188 As the costs order is to be qualified in that way the complaints of the CFMEU about the problematic and potentially unreasonable quantum of costs for which it may be liable under the original costs order, fall away. The qualification is also relevant to the contention that her Honour ought to have had regard to the burden of her costs order as a mitigating factor in relation to penalty. 189 It was open to her Honour and, if it be relevant, to this Court, to have regard to the burden of the costs order in fixing penalty. However, it is also open, as a matter of discretion, to regard each as a separate issue. Once the indemnity costs order has been qualified as set out above there is no reason, in the circumstances of the present case, to regard the burden of that order as a matter that ought to reduce the penalty of $200,000 to some lesser amount. 190 Accordingly, save for variation of the indemnity costs order as set out above, the grounds of appeal in relation to her Honour's costs orders have not been made out. Costs of the appeal 191 BHP Steel also sought an order for indemnity costs of the appeal. There is some force in BHP Steel's contention that, as the public duty aspect of its role in upholding her Honour's orders on appeal is not qualitatively different from the public duty aspect of the role it fulfilled in prosecuting its case for those orders, the same indemnity costs order should be made on the appeal. On the other hand the CFMEU's appeal was against a conviction and penalty in a matter of a criminal nature. In such cases there ought not to be any prima facie rule in favour of indemnity costs. Rather, each case must be considered by having regard to the particular circumstances of the case. 192 There are some distinguishing features in relation to the appeal. The CFMEU acted bona fide and properly in the conduct of its appeal. That may be contrasted with her Honour's finding that the conduct of the proceedings below by officers of the CFMEU was "dishonest and cynical". Also, the CFMEU has succeeded in part on two aspects of the appeal, albeit that they may not be significant aspects. 193 In the particular circumstances of the present case I have concluded that it is appropriate that the CFMEU be ordered to pay BHP Steel's taxed costs of the appeal, but not on an indemnity basis. Conclusion 194 For the above reasons I would order that the appeal be allowed in part by the deletion of the words "and authorised" from the declaration made by the primary judge and by the order her Honour made for indemnity costs being replaced with an order for such costs in the form of the order of the Full Court in Re Wilcox. Otherwise, I would order that the appeal be dismissed with costs. I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 12 December 2001 Counsel for the Appellant: R Kenzie QC; C Howell Solicitor for the Appellant: R L Whyburn & Associates Counsel for the Respondent: W Sofronoff QC; L Kelly Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 17, 18 May 2001 Date of Judgment: 12 December 2001