Re Honourable Peter Drew Durack v Norman Leslie Gallagher [1982] FCA 219; (1982) 65 FLR 459; 3 IR 41 (1 November 1982)

FEDERAL COURT OF AUSTRALIA

Re: THE HONOURABLE PETER DREW DURACK
And: NORMAN LESLIE GALLAGHER [1982] FCA 219; (1982) 65 FLR 459
No. V30 of 1982
Contempt of Court
3 IR 41

COURT

FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.(1)

CATCHWORDS

Contempt of Court - criminal contempt - publication which scandalizes or otherwise lowers the authority of the court - penalty.

Contempt - Criminal contempt - Publication which scandalizes or otherwise lowers authority of Federal Court - Penalty. On 21st July, 1982, the Full Court of the Federal Court of Australia allowed an appeal by the respondent, the federal secretary of the Australian Building construction Employees' and Builders Labourers' Federation, against a conviction for contempt of the Federal Court. On the same day the respondent made certain statements to television reporters, camera operators, journalists and others concerning the decision of the Full Court including the words: "I believe that by their actions in demonstrating in walking off jobs . . . I believe that that has been the main reason for the court changing its mind." By notice of motion the Attorney-General of the Commonwealth brought proceedings charging the respondent with contempt of the Federal Court consisting of those statements.

Held: (1) The essence of the criminal contempt of court alleged against the respondent was conduct which scandalized or otherwise lowered the authority of the court. Conduct by a person which asserts, either expressly or by implication, that a party to a proceeding before the court by itself or by persons associated with it was, or is able to influence a judgment of the court by action taken outside court, constitutes a contempt of court.

Australian Building Construction Employees' and Builders Labourers' Federation v. Fraser unreported (Federal Court of Australia, Northrop J., 6th April, 1982), applied.

R. v. Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434, referred to.
(2) The part of the respondent's answer set out above was a deliberate statement which asserted that the Full Court changed its mind because it was overawed by the action of workers walking off jobs and demonstrating.
(3) The relevant answer constituted conduct by the respondent which, of necessity, tended to induce a lack of confidence in the ordered and fearless administration of justice and constituted a contempt of the Federal Court.

Attorney-General for New South Wales v. Mundey (1972) 2 NSWLR 887, discussed.

R. v. Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434, referred to.
(4) The contempt of court warranted the imposition of a severe penalty. The

respondent should be imprisoned for three calendar months and ordered to pay the Attorney-General's costs.

HEARING

Melbourne, 1982, September 21-22;
October 6-7, 18, 22; November 1. 1:11:1982

The Attorney-General of the Commonwealth commenced proceedings against the respondent alleging criminal contempt of the Federal Court of Australia.

E.D. Lloyd Q.C. and A.G. Uren, for the applicant.

R. Merkel, for the respondent.
Cur.adv.vult.

Solicitor for the applicant: B.J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Holding Redlich & Co.
T.J. GINNANE

ORDER

1. That Norman Leslie Gallagher be imprisoned for three calendar months for contempt of the Federal Court of Australia committed by him on 21 July 1982 when in giving his answer to the question, "What is your reaction (or response) to the Court's decision?" namely:

'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind."

he published the said answer to a number of television reporters, camera operators, journalists and other persons.

2. That a warrant issued for the apprehension of Norman Leslie Gallagher and for his committal to Her Majesty's Gaol at Pentridge or any other gaol which is more accessible or convenient, and for the said Norman Leslie Gallagher to be imprisoned in such gaol for the said period of three calendar months.

3. That Norman Leslie Gallagher pay the Attorney-General's costs of the motion for contempt.

DECISION

Two separate judgments given - first 18 OCTOBER 1982 - second 1 NOVEMBER 1982 following -

JUDGMENT GIVEN 18 OCTOBER 1982

On 11 May 1982, the Federal Court of Australia constituted by a

single Judge (Keely J.), held that the Australian Building Construction Employees' and Builders Labourers' Federation, 'the Federation', was guilty of contempt of the Federal Court. The Federation is an organization of employees under the Conciliation and Arbitration Act 1904, as amended, 'the Act'. On the same date the Court held that Norman Leslie Gallagher, 'Gallagher', was guilty of contempt of the Court. Gallagher is the Federal Secretary of the Federation. On the same date the Court held that B. Boyd was guilty of contempt of the Court. Boyd is an organizer within the Federation. In each case the contempt was constituted by conduct of the Federation, Gallagher and Boyd, which interfered with the course of justice. They had engaged in conduct which was intended to, and which had the tendency to, dissuade persons from giving evidence in support of legal proceedings in the Federal Court. In those proceedings the Minister of State for Industrial Relations, various Master Builders' Associations, being organizations of employers under the Act, and others, as applicants, were seeking the deregistration of the Federation as an organization. The conduct was intended to, and had the tendency to, induce the Master Builders' Associations to discontinue as applicants in those proceedings. The immediate victim of that conduct was H. M. Keast and Sons Pty. Ltd., a master builder.

On 18 May 1982, the Court, constituted by Keely J., fined the Federation $15,000 for its contempt of the Court and directed that that fine be paid by the Federation by an agent properly authorized in writing by the Federation to make that payment on its behalf. On the same date, the Court sentenced Gallagher to two calendar months imprisonment for his contempt of the Court. On the same date the Court fined Boyd $500 for his contempt of the Court and directed that that fine be paid by Boyd or by an agent properly authorized in writing by him to make that payment on his behalf. Each of those orders was stayed pending the hearing and determination of appeals against those orders.

On 18 May 1982 and shortly after the fines and sentences had been announced by Keely J., a substantial number of workers marched off building construction sites in Melbourne, Sydney, the Gold Coast and Perth. In Melbourne, a substantial number of workers who marched off building construction sites marched to the offices of the Master Builders' Association of Victoria and a number attempted to break a police line preventing unauthorized entry into those offices.

On 21 July 1982, a Full Court of the Federal Court of Australia (Smithers, Evatt and Deane JJ.) unanimously dismissed the appeal by the Federation and confirmed the fine which had been imposed upon the Federation. On the same date, the Full Court, by a majority (Evatt and Deane JJ.) allowed the appeal by Gallagher, set aside the finding made on 11 May 1982 that Gallagher was guilty of contempt of the Federal Court and set aside the sentence of two calendar months' imprisonment which had been imposed upon him. On the same date, the Federal Court unanimously allowed the appeal by Boyd, set aside the finding made on 11 May 1982 that Boyd was guilty of contempt of the Federal Court and set aside the fine which had been imposed upon him. The judgment of the Full Court was delivered at about 10.00 a.m.

Following the judgment of the Full Court, a number of journalists and reporters from newspapers and the electronic media, together with television cameramen and other persons totalling in all about twenty, assembled outside the office of the Federation at 11 Lygon Street, Carlton. They were seeking an interview with Gallagher in respect of the judgment of the Full Court. At about 1.00 p.m., Gallagher, accompanied by other men, came out of the office of the Federation and on to the footpath in Lygon Street outside the office. Gallagher held a bundle of documents comprising copies of a resolution passed by the Federal Management Committee of the Federation. Gallagher distributed copies of that resolution to those present. The resolution was set out on a document containing the letterhead of the Federation and was as follows:

'RESOLUTION OF FEDERAL MANAGEMENT COMMITTEE - 21ST JULY, 1982

The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.

As to the fine imposed on the Federation, we maintain our stand that Criminal Courts should not interfere in industrial disputes. This is a cardinal rule of the union movement. We cannot justify the use of our members' funds for the payment of such fines. However, as previously announced, we have launched a public appeal to raise funds to assist the Federation at this time. We are able to say that we have received a number of substantial donations to that appeal fund, the total of which exceeds $15,000.

The fine will be paid by our Benefactors.

DARE TO STRUGGLE DARE TO WIN'

Gallagher consented to be interviewed and to answer questions. The interview was recorded on video tape. In addition, at least one journalist took notes of what was said. The interview came to an end. A number of those present left, but at the request of others Gallagher consented to a second interview and to answer further questions. The whole of the second interview was not recorded on video tape and there is no record of all of the questions asked.

The questions asked and the answers given in the first interview are set out:

'Reporter: 'Mr. Gallagher, how do you feel about getting acquitted by the Courts?'

Gallagher: 'I think it's a great victory for the members of the Federation.'

Reporter: 'Do you feel personally happy about it?'

Gallagher: 'Well put it this way is that I had no doubt that the membership would defend the officials of this union. They showed their .... their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union then a lot of them'd go out backwards.'

Reporter: 'Mr. Gallagher, how expensive an exercise had it been for the union?'

Gallagher: 'Well, first of all if you read the statement of the Federal Management Committee you will see that there has been a public appeal, where over l5,000 has been collected and the fine that the court has imposed on the union will be paid by our benefactors.'

Reporter: 'Were you ever afraid of going to jail?'

Reporter: 'Who is your benefactor?'

Gallagher: 'No, I've never been afraid of going to jail for what I believe in.

Reporter: 'Who is your benefactor?'

Gallagher: 'Well, first of all that's a matter between the union and those people who had donated to the public appeal.'

Reporter: 'Are builders in that group?'

Gallagher: 'Well who else'd pay it?'

Reporter: 'Will the fine be paid within the next 7 days?'

Gallagher: 'If you read this statement you will see that the union is prepared to pay the fine, with other people's money ... not its own.'

Reporter: 'The Court has said that you ... the union itself has to pay it.'

Gallagher: 'Yes, we will name a person to pay it, but the money that will be paid to the court would have come out of the public appeal.'

Reporter: 'Can you say who the builders are that donated to this cause?'

Gallagher: 'No, but I think you have all got an idea who they are.'

Reporter: 'Is it H. M. Keast for instance?'

Gallagher: 'No, I don't think he'd have enough money ... He's going bad]'

Reporter: 'Will there be further industrial action against companies that are involved in the deregistration?'

Gallagher: 'I make no comment.'

Reporter: 'Do you regret what you did in the first place in imposing those bans?'

Gallagher: 'I don't regret anything.'

The questions were not hostile.

Gallagher was not being harassed by the journalists and reporters. He gave careful, considered and deliberate answers. The only sign of any amusement was when he gave his answer that H. M. Keast was going bad. As he gave that answer he laughed.

The questions asked, or in same cases, the substance of them, and the answers given in the second interview are set out:

Reporter: 'Mr. Gallagher, what is your reaction (or response) to the Court's decision?'

Gallagher: 'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind.'

Reporter: 'Do you intend to pay the fine that's still outstanding?'

Gallagher: 'The union does not intend to pay the fines out of its own funds. We've set up a public appeal in which we've already received over l5,000 dollars and the fines will be paid out of that fund. I want to stress once again it will not come out of union funds nor will any union money be used to pay it.'

Reporter: 'Have you said who actually contributed that money?'

Gallagher: 'No, but I think you know who would contribute to such a fund.'

Reporter: 'Employers who don't want further industrial reaction perhaps.'

Gallagher: 'Well, I don't think any employer in this industry wants to have a fight with this union at the present time. There's too many got problems with high interest rates, liquidity problems and there's no doubt that they want an easy way out.'

Reporter: 'The court has made it clear that the union itself should pay the fines out of its own funds? Do you think this move you're making will jeopardise the ... that there could be further action against you because of this?'

Gallagher: 'No, what we've said is that, we will be using the money out of the public appeal fund and we will get our benefactors to pay it.'

(Question as to who would pay the court costs.)

Gallagher: 'The Federal committee of management will consider that later on. It'll be a few thousand in fees.'

(Question as to how the union would face deregistration.)

Gallagher: 'It's looking sicker and sicker every day ... it's looking more sicker than Malcolm Fraser's chances in the next Federal election. Peacock's gone, Viner's gone, and I'm still here. The message is getting back to Macphee, that to continue deregistration will only leave major problems in the industry they can ill afford.

Four big major contractors are pulling out of deregistration. No doubt people are seriously thinking about it.'

(Question about the possibility of criminal charges as a result of the Royal Commission.)

Gallagher: 'I don't want to discuss it. It'll fall on its face just like this has.'

(Question as to how the membership had reacted to the Federal Court's decision.)

Gallagher: 'A lot of jobs have gone home in protest over the fine. Dozens and dozens have gone home.'

Reporter: 'How do you feel about the media?'

Gallagher: 'I believe you've still got a long way to go before I say you've got good manners but you are improving ... I have seen signs of it today.'

As in the first interview Gallagher was not being harassed by the journalists and reporters. He gave careful, considered and deliberate answers. The only sign of amusement came at the very end when, at the request of a reporter, he posed while holding a copy of the resolution in front of his chest to enable him and it to be filmed while he was asked and answered the last question.

By notice dated 27 August 1982, the Attorney-General of the Commonwealth gave notice in the Full Court proceedings that he would move the Court that Gallagher be punished for the contempts of court described in the statement of charge filed with the Court. The statement of charge, as amended pursuant to leave granted, is as follows:

'1. The Respondent, Norman Leslie Gallagher, is charged with contempt of the Federal Court of Australia in that he on 21 July 1982 outside 11 Lygon Street Carlton, after his appeal against his conviction and sentence to 2 months' imprisonment by the Federal Court of Australia had been allowed by a Full Court of the Federal Court of Australia on that day, spoke and published to a number of television reporters, camera operators, journalists and other persons the words attributed to him in the following passages, namely:

Reporter: Mr. Gallagher, how you you feel about getting acquitted by the Courts?

Gallagher: I think its a great victory for the members of the Federation (meaning thereby the Australian Building Construction Employees and Builders' Labourers Federation).

Reporter: Do you feel personally happy about it?

Gallagher: Well put it this way is that I had no doubt that the membership would defend the officials of this union. They showed their ... their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union that a lot of them'd go out backwards.

(and shortly thereafter):

Reporter: Mr. Gallagher, what is your reaction (or response) to the Court's decision?

Gallagher: I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind.

The said words being intended by him to, or having the tendency to, attribute improper motives to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.

2. The said Respondent is further charged with contempt of the Federal Court of Australia in that in speaking and publishing the words attributed to him in the passages set out in the first charge, he did so knowing intending or believing that they would be republished to members of the public by means of television, and was thereby a party to the republication of the said words:

'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind.'

which occurred by means of their being televised from television station ABV-2 on 21 July 1982, such words being intended by him to, or having the tendency to, attribute improper motives to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.

3. The said Respondent is further charged with contempt of the Federal Court of Australia in that in speaking and publishing the words set out in the first charge, he did so knowing intending or believing that they would be republished to members of the public in a newspaper, and was thereby a party to the republication of the said words by means of a summary thereof which occurred when the passage set out hereunder was published in the issue of 'The Age' newspaper of 22 July 1982, such words being intended by him to, or having the tendency to, attribute improper motives to the court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.

'It (meaning the allowing of the said appeal) was a great victory for members of the Union (meaning thereby the Australian Building Construction Employees' and Builders Labourers' Federation).

'They showed willingness to demonstrate and walk off jobs when the sentence was announced. This is the main reason for the Court's change of mind. Employers don't want a fight with the union at this stage. With interest rates as high as they are, no one can afford a big dispute.'

4. The said Respondent is further charged with contempt of the Federal Court of Australia in that he on the occasion referred to in the first charge distributed to those persons present a document (the resolution of the Federal Committee of Management of the Federation), the words thereof being intended by him to, or having the tendency to, attribute improper motives to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court, and also that in so doing, he intended or believed that the contents of the said document would be republished to members of the public in newspapers, or by television, or believed that it was likely that they would be so republished."

In the Australian Building Construction Employees' and Builders Labourers' Federation v. Fraser, Federal Court of Australia, 6 April 1982, unreported, I disccussed the relevant legal principles applicable to the type of criminal contempt alleged in the present motion, namely conduct which scandalizes or otherwise lowers the authority of the Court. I refer to and repeat what I said in that case at pp.17-20 and 22-27. The same general principles apply to the present case and in particular the duty of a court to act according to law and its independence from outside pressures.

For present purposes the essence of this type of criminal contempt is conduct which scandalizes or otherwise lowers the authority of the court. This is illustrated by the following extract taken from the judgment of Rich J. in R. v. Dunbabin [1935] HCA 34; (1935) 53 CLR 434 at 442-3:

'The Court is called upon to exercise its summary power of punishing contempts of Court. This jurisdiction, which is well established and belongs to this Court as well as to the Supreme Courts of the States, exists for the purpose of preventing interferences with the course of justice. Such interferences may arise from publications which are calculated to embarrass a tribunal in arriving at its decisions. Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained.'

In the course of submissions, reference was made to many other authorities. They are listed in an appendix to these reasons but detailed reference need not be made to them.

In the present case, counsel for the Attorney-General contended that in giving the answers set out in paragraph l of the statement of charge, Gallagher published to those present, with the intention and knowledge that they would be published further, words which were calculated, in the sense of likely, to scandalize the Court and to lower its authority since implicit in those answers was a claim or assertion that the Federation and its members by conduct outside Court were able to influence the Court, and in fact had influenced the Court, in what it should do, and thus interfered with the due progress of justice and the lawful process of the Court.

The duty of the Court is to administer justice according to law and to apply the law to facts proved in Court. Conduct by a person which asserts, either expressly or by implication, that a party to a proceeding before the Court by itself or by persons associated with it were, or are able, to influence a judgment of the Court by action taken outside Court constitutes a contempt of the Court. That conduct is calculated to scandalize the Court and to lower its authority. That conduct tends to detract from the authority and influence of judicial determinations and of necessity must impair the confidence of the public in the Court's judgment since it creates misgivings as to the integrity, propriety and impartiality necessary to the exercise of judicial office.

In the present case the crucial question is whether in giving the answers set out in paragraph l of the statement off charge, Gallagher, either expressly or by implication, asserted that the Federation by the action of its members outside Court, had the power to influence and in fact influenced the Full Court of the Federal Court of Australia to set aside the term of imprisonment imposed upon Gallagher.

The activities of the Federation, the deregistration proceedings and the contempt of court proceedings against the Federation and Gallagher had received much publicity in the press, on radio and on television. The orders of the Court on 11 May 1982 had received much publicity. The fact that an appeal was lodged, and the hearing of the appeal, had received much publicity. Against that background it was to be expected that the judgment of the Full Court would receive much publicity in the press, on the radio and on television. The answers of Gallagher to questions asked during the interview must be considered in the light of that publicity. The particular questions and answers, the subject of the charge for contempt, must be considered in the light of that publicity and the probability of future publicity. They were given some three hours after the publication of the judgment of the Full Court and its reasons for judgment. The Federal Committee of Management of the Federation had been considering the judgment of the Full Court. Mr. Gallagher knew of the resolution of the Committee of Management, particularly the first two paragraphs, namely:

'The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.'

Those paragraphs of necessity must refer to Gallagher, the second paragraph could refer to Boyd also. The two paragraphs could not refer to the unsuccessful appeal by the Federation. The two paragraphs may be mere hyperbole, but they do set the tone for the subsequent interview.

Counsel for Gallagher contended that the answers, the subject of the charge of contempt of Court, are not capable of constituting a contempt of the Federal Court and should not be construed in the sense contended for on behalf of the Attorney-General. He contended that if those answers were capable of amounting to a contempt of court their tendency to interfere with the course of justice or to lower the authority of the court was so slight that the Court should not punish Gallagher. He contended that the facts which gave rise to the contempt proceedings before Keely J. were in essence industrial in nature and should be seen and understood as being in the industrial area. He argued that in their context the answers by Gallagher should be construed as meaning no more than that Gallagher had believed that the Court had seen the injustice of the penalty, as had the workers when they walked off the jobs and had demonstrated and that the Court had rectified that injustice by allowing the appeal. In other words he contended that the Court had recognized the feelings of the public as evidenced by the demonstrations and that the Court had had regard to those feelings of the public. He argued further that the answers were in reality expressions of gratitude by Gallagher for the support of the members of the Federation and that they should not be construed as having any other meaning.

In his submissions, counsel for Gallagher relied strongly on expressions of opinion contained in Attorney-General for New South Wales v. Mundey (1972) 2 NSWLR 887. In that case the Attorney-General had brought proceedings against Mr. Mundey for contempt of court arising out of statements made to media reporters immediately after two persons, John Phillips and Robert Arthur Pringle, had been fined for causing malicious damage to property. Mr. Mundey was the Secretary of the New South Wales Branch of the Builders Labourers' Federation. The other two men were officers in that branch. The incidents from which the criminal charges against Phillips and Pringle arose were demonstrations against a Rugby Union football team from South Africa. They were convicted and fined. After they had been released, together with Mundey they left the Court whereupon Mundey was interviewed outside the Court by representatives of three television stations. One of the answers given by Mundey in response to the question, 'What is your impression of this morning's decision?' was:

'I think the main purpose, the industrial action by the workers here this morning, the spontaneous action of workers walking off jobs, stopped the racist Judge from sending these two men to jail. That is the real position.'

The Attorney-General alleged that that answer, as well as some other answers, constituted contempt of court. In the contempt proceedings Mundey gave evidence and was cross-examined in relation to events that had occurred, the basis of his comments and what he intended by them. He also gave evidence that he had no intention of scandalizing the Court. In his judgment, Hope J.A. gave detailed consideration to a large number of cases concerning this type of contempt as well as the inter-relations between comments which constituted criticism, whether adverse or favourable, of judicial decisions and which do not constitute contempt and comments which do constitute contempt. His Honour said at pp.9l4-5:

'The defendant's explanation of these statements was that he intended to emphasize that judges do not operate in a vacuum but in a context in society, and the presence of large numbers of workers at the court room during the trial and at the sentencing of the defendants Mr. Pringle and Mr. Phillips, and the threat to call a national strike, must have shown the judge that a very significant number of people in the community supported the action which had been taken in protest against the visit of the South African Rugby Union team, and that this knowledge must have influenced him in the decision as to what penalty he should impose. If this were all that had been said, then I do not think the statement would have constituted contempt. The learned Chairman was, of course, trying a criminal case in which the principal issue was the malicious damage to property, and in presiding at the trial and in deciding what sentence should be imposed on conviction his obligation was, of course, to apply the law of the land as he understood it.

However, I do not think that a statement that in respect of a matter of discretion, as is a decision as to what sentence should be imposed, a Chairman of Quarter Sessions had had regard to public feeling in relation to matters related to the charge could be said to interfere with the administration of justice. However, I do not think that the words used by the defendant can be read down in this way. As it seems to me, the meaning of the words he used was not simply that the judge was influenced by evidence as to public interest in the apartheid protests, or in the trial of Mr. Pringle and Mr. Phillips; the words the defendant used meant that the judge had decided to send Mr. Pringle and Mr. Phillips to gaol, but he changed his mind because he was overawed by the action of workers walking off their jobs and attending the trial and by the threat to call a national strike. It is true of course that the defendant had no time to draft his answer to the question or to be careful in his choice of words, and that is a most material circumstance in relation to what action I should take in relation to the matter, but I think that the words which he did use were calculated to express a view that a judge, having made up his mind to take a particular course of action, was overawed into taking another course of action, and this, in my opinion, constitutes contempt of court. Such a statement must tend to induce a lack of confidence in 'the ordered and fearless administration of justice', and was in the circumstances quite unwarrantable: R. v. Fletcher; Ex parte Kisch ((1935) [1935] HCA 1; 52 CLR 248, at p.257).'

The facts in Mundey's case were very different to the facts in the present case. Here Gallagher was interviewed some three hours after judgment had been given and after the Federal Management Committee of the Federation had considered the judgment and passed the resolution already set out. Mr. Gallagher left the office of the Federation knowing that he was to be interviewed by representatives from the media. He distributed copies of the resolution before answering questions. At the end of the interview he returned to the office of the Federation. This was not an unexpected interview for which Gallagher was not prepared. Further, Gallagher has not given evidence in these proceedings.

In the light of all the circumstances already set out and including considerations of the need for full, free and frank public comment on judicial decisions, it is necessary to construe the words, the subject of the statement of charge for contempt, as set out in paragraph l. They are to be considered having regard to the fact that contempt proceedings are criminal in nature and that the criminal onus on proof applies. The answers, the subject of the charge, given in the first interview are in one sense not responsive to the questions asked. In fact the second question appears to have been asked because the reporter considered the first question had not been answered. The answers are in my opinion expressions of gratitude to members of the Federation for what they had done. The reference to the financial position of Master Builders does not of itself make the answers a contempt of court. I am not satisfied that the two answers taken from the first interview constituted contempt of court.

The answer the subject of the charge taken from the second interview comes within a different category. The first part of the answer is an expression of gratitude to members of the Federation, but the words, 'I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the Court changing its mind' cannot in my opinion come within that category. It was a deliberate statement which, to adapt the words of Hope J.A. in Mundey's case asserted that the Full Court changed its mind because it was overawed by the action of workers walking off jobs and demonstrating. The words are an echo of what appears in the first paragraph of the resolution, namely that the action of the members of the Federation, 'is the key to the reversal of the decision to jail Norm. Gallagher'. The words were used in the context of illustrating what can be achieved when the rank and file and officers of the Federation combine to engage in a class struggle. Implicit in the answer is the assertion that by that class struggle the Federation is able to force a court to come to a decision not according to law and to the facts proved in court, but according to the strength and actions of a body outside the court. The giving of the answer at the interview constitutes conduct by Gallagher which of necessity must tend to induce a lack of confidence in 'the ordered and fearless administration of justice'. That conduct by Gallagher of necessity must have the tendency 'to detract from the authority and influence of judicial determininations ... to impair the confidence of the people in the Court's judgments because ... (it) ... aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office', R. v. Dunbabin at p.242.

The fact that the proceedings before the Full Court had ended and that no appeal could be taken from that judgment of the Full Court does not prevent that conduct by Gallagher constituting a contempt of the Court. The delay between the time the statement was made, 21 July 1982, and the giving of the notice of motion, 27 August 1982, does not prevent that conduct by Gallagher constituting a contempt of the Court.

In my opinion the conduct engaged in by Gallagher in giving the last answer set out in paragraph 1 of the statement of charge constitutes a contempt of the Federal Court and that this is a case where the Court ought to exercise its power to punish for contempt of court.

The contempts alleged in paragraphs 2 and 3 of the statement of charge can be considered together. I am satisfied that Gallagher gave his answers at the interview with the intention and knowledge that the answers or some of them would be published further either in the press, on the radio or on television. Gallagher published his answer as set out in paragraph 2 of the statement of charge to those present at the interview and that publication constitutes a contempt of court. Gallagher could not determine what parts of the interview would be republished. I adverted to this problem in Fraser's case, supra, at pp.9-10. The juxtaposition of answers and parts of answers out of context as set out in paragraph 3 illustrates how false impressions are created. The Court has found that Gallagher committed a contempt of court in publishing the last answer set out in paragraph 1. The Attorney-General has not sought to sue any of the media publishers for contempt of court based on the further publication of that answer or for that matter any other answer given by Gallagher. In the circumstances of this case the publication of the news items do not of themselves constitute contempt of court by Gallagher and should not be made the finding of a separate contempt.

There remains to consider the contempt alleged in paragraph 4 of the statement of charge. On the evidence, Gallagher distributed the copies of the resolution in his capacity as Federal Secretary of the Federation. That distribution constitutes publication to those present at the interview of the contents of the resolution, and insofar as those contents constitute a contempt of court, Gallagher may have committed a contempt. In the same way the media, in publishing answers made by Gallagher, may have committed a contempt of court. In the present case the Court has found that Gallagher has committed a contempt in giving the last answer set out in paragraph l of the statement of charge. As part of the surrounding circumstances of that contempt, reference was made to the resolution the subject of the contempt alleged in paragraph 4. In all the circumstances of this case it is not appropriate that the Court should hold that the facts set out in paragraph 4 should be held to constitute a separate contempt.

In the result the Court finds that Norman Leslie Gallagher, in giving his answer to the question, 'What is your reaction (or response) to the Court's decision?' namely: 'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind.'

committed a contempt of the Court and that the Court should exercise its power to punish for that contempt. The Court will adjourn the further hearing of this matter to enable submissions to be put on the question of punishment.

JUDGMENT GIVEN 1 NOVEMBER 1982.

On 18 October 1982, the Court announced its finding that on 21 July 1982 Norman Leslie Gallagher, in giving his answer to the question, "What is your reaction (or response) to the Court's decision", namely:

'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind.'

committed a contempt of court and that the Court should exercise its power to punish for that contempt. The Court published its reasons for making that finding. The Court then adjourned the further hearing of the motion for contempt to 22 October 1982 to enable submissions to be made on the question of punishment.

On that day, counsel appeared for Mr. Gallagher, but as on the earlier hearing of the motion, Mr. Gallagher did not give evidence before the Court.

Counsel for Mr. Gallagher contended that the appropriate punishment would be for the Court to order that Mr. Gallagher pay the costs of the Attorney-General. He stressed the circumstances in which the second interview had taken place and the fortuitous circumstance that the second interview had been granted at the request of a reporter. He contended that nothing said in the first interview had constituted contempt and that the actual words in the second interview which constituted the contempt had formed a small part of a single answer in the context of many questions and answers directed to the question of how the fine imposed on the Federation was to be paid. He contended that the answer in reality was an expression of gratitude by Mr. Gallagaher to the members of the Union and he incorporated, by reference the contentions made at the earlier hearing as to the proper construction to be given to that answer. He referred to the publicity given to the matter generally as to how the fine on the Federation was to be paid and to the reasons of the Full Court in allowing the appeal by Mr. Gallagher against the order for imprisonment which had been imposed upon him. He contended that in its proper context the offending answer formed a minor aspect of the whole interview. He referred to the distorted reports which had appeared in the press and claimed that no reason had been given on behalf of the Attorney-General to explain why no action for contempt had been taken against the media publishers. He contended that the publication by Mr. Gallagher to the people present at the second interview was small and that a large degree of publicity had been given by the media and that that was relevant to the question of punishment. Without the intervention of the media, he said, the contempt would have been minor. He referred in detail to the reasons for judgment given by Hope J.A. in Mundey's case. He contended that the underlying purpose of the answer was not to denigrate or scandalize the Court, but merely to thank the members of the Federation.

I have taken account of all the submissions made on behalf of Mr. Gallagher. It is not necessary to refer in detail to the reasons given by Hope J.A. In that case Mr. Mundey had given evidence and had been cross-examined. He gave evidence, which was accepted by the Court, that he had not intended to be contemptuous of the Court. He said that he had had no intention of scandalizing the Court.

Counsel for the Attorney-General led evidence to prove that on 2 April 1982 Norman Leslie Gallagher had been found guilty in the Supreme Court of Victoria of six offences against s.19 of the Evidence Act 1958 (Vic.) for refusing to answer questions before the Royal Commission being conducted by Mr Winneke, Q.C., and had been fined a total of $500 and had been ordered to pay the costs of the Attorney-General for the State of Victoria. I do not take into account those convictions in considering punishment in the present case.

The essence of the contempt of Court committed by Mr. Gallagher can be summarized. As the Federal Secretary of the Federation, Mr. Gallagher is a member of the Federal Management Committee of the Federation. On 21 July 1982 that Committee considered the judgment of the Full Court. Mr. Gallagher must have participated in that consideration. The Committee adopted a resolution which included the following paragraphs:

'The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.'

Subsequently Mr. Gallagher left the office of the Federation and entered Lygon Street. He agreed to be interviewed and to answer questions. Thereafter he returned to the office of the Federation. The questions were not hostile. Mr. Gallagher was not being harassed. He gave careful, considered and deliberate answers. He must have given those answers with the intention and knowledge that they or some of them would be published further in the press, on the radio and on television. He gave the answer set out at the beginning of these reasons and which constitutes the contempt of Court. That answer constitutes an assertion that the Federation is able to force the Court to come to a decision, not according to law and to the facts proved in Court, but according to the strength and actions of the Federation and its members. It asserts that the Federation and its members are outside the law. It has a tendency to destroy the confidence of the public in the integrity, propriety and impartiality of the Court. For the reasons already given that assertion is a most serious contempt.

Over a long period, the activities of the Federation and the sayings of Mr. Gallagher have been given much publicity by the news media. Mr. Gallagher is a public figure. He has been given every opportunity to explain his answer. He has not done so. He has shown no sign of remorse. He has expressed no regret to the Court. He has offered no apology to the Court. His conduct had a tendency to impair the confidence of the public in the court's judgments. It attacked the integrity, propriety and impartiality of the Court. The confidence of the public in the integrity, propriety and impartiality of the Court must be maintained.

The contempt of court by Norman Leslie Gallagher warrants the imposition of a severe penalty. In all the circumstances it is not appropriate that a monetary penalty should be imposed. In any event it is all too easy for Mr. Gallagher to have a monetary penalty paid by 'benefactors'. The punishment must take the form of imprisonment. In all the circumstances he must be sent to prison for three calendar months. In addition he will be ordered to pay the Attorney-General's costs.

AUTHORITIES REFERRED TO DURING HEARING
Ambard v. Attorney-General for Trinidad and Tobago (1936) AC 322
Attorney-General for New South Wales v. Mundey (1972) 2 NSWLR 887
Australian Building and Construction Employees' and Builders Labourers' Federation v. David Syme & Co. Limited and Anor., unreported, Federal Court of Australia, No. V.23 of 1981, Northrop J., 3 December 1981
Australian Building and Construction Employees' and Builders Labourers' Federation v. Fraser, unreported, Federal Court of Australia, No. V.23 of l98l, Northrop J., 6 April 1982
Australian Building and Construction Employees' and Builders Labourers' Federation and Ors. v. Viner and Ors., unreported, Federal Court of Australia, No. V.30 of 1982, Full Court, 21 July 1982
Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419
Dunn v. Bevan (1922) 1 Ch. 276
Evening News, Re (1880) 1 LR (N.S.W.) L 211 .
John Fairfax & Sons Pty. Ltd. v McRae [1955] HCA 12; (1955) 93 CLR 351
McLeod v. St. Aubyn (1899) AC 549
R. v. Almon [1765] EngR 25; (1765) Wilm 243; 97 ER 94
R. v. Arrowsmith (1950) VLR 78
R. v. Brett (2950) VLR 226
R. v. Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434
R. v. Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248
R. v. Nicholls [1911] HCA 22; (1911) 12 CLR 280
R. v. United Fishermen and Allied Workers' Union (1968) 2 Can CC 257
Taylor v. McPhillips (1949) 63 CAR 308
Viner and Ors. v. Australian Building Construction Employees' and Builders Labourers' Federation and Ors., unreported, Federal Court of Australia, No. V.23 of 1981, Keely J., 11 May 1982.