Re Garry Francis Bullock; John Skilbeck; Graham James Harkness and William Barlow v the Federated Furnishing Trades Society of Australasia L Kyriacou; A Findlay; R Shugg; Alvonne Nominees Pty Ltd (Trading As A F Carpet Distributors); Colony Carp [1986] FCA 159 (23 May 1986)

FEDERAL COURT OF AUSTRALIA

Re: GARRY FRANCIS BULLOCK; JOHN SKILBECK; GRAHAM JAMES HARKNESS and WILLIAM
BARLOW
And: THE FEDERATED FURNISHING TRADES SOCIETY OF AUSTRALASIA L. KYRIACOU; A.
FINDLAY; R. SHUGG; ALVONNE NOMINEES PTY. LTD. (Trading as A. F. CARPET
DISTRIBUTORS); COLONY CARPETS PTY. LTD.; R. G. CARPET AGENCIES PTY. LTD.;
CARPET WHOLESALERS (VIC) PTY. LTD., OTTO FLOORS PTY. LTD.; V. E. MACKEY & CO.
PTY. LTD., JASON CARPETS COMMERCIAL PTY. LTD. and GURIAN PTY. LTD. (Trading as
MYER TEALE)
No. VG 284 of 1984
Contempt of Court - Industrial Organization

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Contempt of Court - alleged breaches of interlocutory order - aiding and abetting contempt - onus of proof - whether proper service of order - whether parties charged had been "notified of the terms" of the order - whether to dispense with service - whether respondents contravened order in failure to allege essential element - absence of evidence to support allegations - whether charge against individual sustainable if charge against Society failed.

Industrial Organization - whether branch officer had authority to bind federal body - construction of rules of branch and federal body - rules conferring autonomy on branch.

Federal Court Rules 0.7 r. 15; 0.37 r. 2; 0.40 r. 7

Law Society of New South Wales v Kinsella (unreported) NSW C.A.

Flamingo Park Pty. Ltd. v Dolly Dolly Creation Pty. Ltd. (1985) 59 ALR 247

Australian Meat Industry Employees' Union v. Mudginberri

Station Pty. Ltd. (1985) 61 ALR 635

Helton v Allen [1940] HCA 20; (1940) 63 CLR 691

Foley v Herald-Sun T.V. Pty. Ltd. and anor. (1981) VR 315

Yorke v Lucas (1983) 49 ALR 672

The Waterside Workers' Federation of Australia v Burgess Brothers Limited [1916] HCA 2; (1916) 21 CLR 129

The Commonwealth Steamship Owners' Association v. The

Federated Seamen's Union of Australasia [1923] HCA 40; (1923) 33 CLR 297

Imlach v Daley (1985) ALR 377

Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30

HEARING

MELBOURNE
23:5:1986

DECISION

Garry Francis Bullock, John Skilbeck and James Harkness have moved for orders that The Federated Furnishing Trades Society of Australasia (the respondent Society), A. Findlay and R. Shugg "be punished for contempt of Court", alleged to have been committed in September and October, 1985. In the substantive action there are four applicants and twelve respondents but it is convenient to refer, in these reasons for judgment, to the three movers of the motion as the applicants and to the three respondents to that motion as the respondents. The applicants allege that each of the respondents has wilfully and contumaciously contravened and disobeyed an order of a Full Court made on 17 December 1984, the relevant terms of which will be set out later.

2. The New South Wales Court of Appeal (Hope, Reynolds and Samuels JJA) in Law Society of New South Wales v Kinsella said "Contumacy is a form of criminal contempt. In order that it be established one must be satisfied beyond reasonable doubt about the events that have taken place, and that they constitute contumacy." That judgment was unreported but the passage was quoted by Wilcox J. in Flamingo Park Pty. Ltd. v Dolly Dolly Creation Pty. Ltd. and others (1985) 59 ALR 247 at 259 and by a Full Court in Australian Meat Industry Employees' Union v Mudginberri Station Pty. Ltd. (1985) 61 ALR 635 at 645 (per Smithers and Northrop JJ).

3. However, in the present proceedings the applicants sought that the three respondents be punished for contempt of court even if the evidence failed to establish contumacy. In those circumstances, in considering the evidence I have not required proof beyond reasonable doubt. On the other hand, I agree, with respect, with the principle applied by Wilcox J. in Flamingo Park (at 262), namely, that "... the gravity of the consequence flowing from a particular finding is one consideration which must affect the degree of satisfaction necessary for the purpose ..." (Helton v Allen [1940] HCA 20; (1940) 63 CLR 691).

4. The "statement of charge", dated 4 November 1985, which accompanied the notice of motion was quite inadequate and was replaced by one delivered on 20 November 1985 pursuant to a direction by the court. During the hearing two of the fourteen allegations of contempt were withdrawn and the statement of charge was amended by leave (the amended statement of charge). That statement made it clear that the conduct alleged to constitute contempt by the respondent Society consisted of conduct at 61 Drummond Street, South Carlton by Mr. Findlay, on 2 September, 1985 and by Mr. L. Kyriacou on 3 September, 1985 and conduct by Mr. Shugg on 25 October, 1985 at a building site at 151 Mt. Alexander Road, Flemington. The amended statement of charge alleged that the conduct of Mr. Findlay, Mr. Kyriacou and Mr. Shugg was, in each case, conduct as the "servant or agent" of the respondent Society.

5. It also alleged that Messrs. Findlay and Shugg by performing those acts were each guilty of contempt of court in that each "did aid abett (sic) council (sic) procure and was directly and indirectly concerned in conduct of the kind described" in the statement of charge relating to the respondent Society.

6. On 12 November 1985, in discussing the question of a date for hearing the motion, the court said:-

"... it does seem to me to be highly desirable before

that matter does proceed, whenever that may be, that the
affidavits upon which you rely be identified. At the
moment there has been a tendency to mix them all in
together ... with matters relating to other notices of
motion... It behoves everyone to have their documents in
the proper form ... I do think the applicants' house on
that needs to be put in order."

7. Based substantially upon the terms of an application by the applicants, on 19 November, 1985 directions were given. The terms of those directions were contained in an order which was taken out by the solicitors for the applicants and entered on 21 November, 1985 and which included the following:-

" ...
(b) The First, Second and Thirdnamed Applicants file
and deliver to the solicitors for the First,
Third and Fourthnamed Respondents any further
Affidavits they intend to rely on or before the
27th November, 1985."

8. Notwithstanding the terms of those directions, the applicants' solicitors filed further affidavit material after the date fixed for the filing of any further affidavits by them. The respondents'solicitors had made it quite clear to the applicants' solicitors that they expected them to adhere to the directions. In a letter dated 11 December, 1985, they wrote that they assumed that the material which had been delivered to that date was "the only material upon which you intend to rely" and went on to "formally advise (that) we shall object in the strongest possible terms to the admission of any further material upon which you may seek to rely ...". Entirely undeterred by the terms of that letter, the applicants' solicitors, by letter dated 17 December, 1985, advised the respondents' solicitors "as a matter of courtsey (sic), that we do not believe that it is encumbant (sic) upon us to put forth all our supporting material by way of Affidavit". They added that they would be serving "shortly" (i.e. three weeks after the time directed by the court) various further affidavits including a proposed "Affidavit from a Deponent in Japan". They then said :-

"In the event that we are instructed or advised of
material which may be helpful to our client's (sic)
Application we hereby advise that we intend to,
where we deem it appropriate, prepare and serve
further material.

Whilst we hear your wish to object to the service
of further material we do not believe that any
reasonable Court would deny our clients the
opportunity to put forth within a reasonable time,
further material. In addition, we say that the
presentation of supporting material by way of
Affidavit should, in fact, please you as it puts
your client in a position of knowledge prior to the
Hearing of our client's (sic) Application. You are
no doubt aware that it is open to us to call oral
evidence at the Hearing and not to limit same to
material contained in Affidavits."

9. Having regard to the directions, sought by the applicants and made by the court on 19 November 1985, prescribing a time for the filing of "any further affidavits", it is difficult to understand how the applicants' solicitors could have been so confident in their belief that they would be given leave to use further material. It is even more difficult to understand, having regard to Order 40 Rule 7 of the Federal Court Rules, how they could so confidently assert "that it is open to us to call oral evidence at the Hearing and not to limit same to material contained in Affidavits".

10. The hearing commenced on 24 February, 1986 and the applicants' counsel immediately referred to the "... problem that the applicants face (is) to satisfy your Honour that there has been personal service of the order of the full court. Alternatively, for your Honour to exercise a discretion under the rules to dispense with personal service ...". In this connexion he sought leave to tender in evidence further affidavits. After hearing argument, the Court gave the applicants leave to do so. Leave was also sought to call oral evidence but the applicants' counsel, after a conference with the proposed witness, did not pursue that application. The Court was also informed that the applicants would not seek to file the proposed affidavit from a deponent in Japan, referred to in the letter dated 17 December 1985 from the applicants' solicitors.

11. Questions as to whether the alleged conduct of Messrs. Findlay, Kyriacou and Shugg was conduct by a "servant or agent" of the respondent Society were raised from the bench on 26 February 1986. The applicants then sought to rely upon material which had been filed in November and December 1984 in support of the application for interlocutory injunctions. That material included the registered rules of the respondent Society and of its Victorian Branch. It also included an affidavit by the firstnamed applicant, Mr. Bullock, sworn on 30 October, 1984. The respondents' counsel objected to that material on grounds which included an overall objection that new material should not be permitted in these proceedings, having regard to the time limits prescribed by the directions given on 19 November, 1985. After hearing argument on that objection the Court gave the applicants leave to file such material, subject to any objection to admissibility on further grounds and on the basis that the respondents would be entitled to an adjournment and to an order for costs. The court described as unsatisfactory the applicants' attempts in 1986 to rely upon material tendered in 1984 in earlier proceedings and referred to the need for the applicants to put their "house completely in order and serve upon the respondents specific details of precisely what material" they relied upon. After the matter was stood down for a short time the applicants' counsel sought an adjournment, saying:-

"... it seems desirable to our side, and perhaps
desirable from the respondents' side, ... that the
respondent knows precisely what evidence it is that I
will be seeking to rely upon and I know precisely what
evidence is available to me to be able to lead."

12. The application for an adjournment was not opposed and, because of other commitments, the matter was adjourned until 18 March, 1986 with an order as to costs. It was directed that the applicants should within seven days serve upon the respondents' solicitors a statement specifying clearly all those affidavits and exhibits upon which they wished to rely in support of the present motion, including affidavits previously filed in the substantive proceedings, and identifying the actual paragraphs in those previously filed affidavits. That statement was supplied on 5 March 1986 and the hearing resumed on 18 March 1986.

13. Despite the terms of the directions sought and obtained by the applicants on 26 February 1986, the applicants, on 18 March 1986, sought to tender in evidence three further affidavits (sworn on 17 and 18 March 1986) - which of course were not referred to in the applicants' statement of 5 March 1986. The tender was opposed and was rejected in the following terms:-

"... given the overall conduct of this action, the
directions given and the correspondence that passed -
for example, the clear warning given by the respondent's
solicitors that they would be objecting to any further
material - the earlier discussions in this court when
leave was sought ... (on) 24th and then again on the
26th; in those circumstances, coupled with the
significant matter (to) which Dr. Buchanan refers of the
absence of any explanation for this - any good cause -
it seems to me it would not be a proper course, in
contempt proceedings in particular, to grant the leave
that is sought by the applicant."

14. It should perhaps be added that the further affidavits were directed towards establishing that Mr. Kyriacou, on 27 September 1985, (i.e. after the date of some of the alleged contempts) had knowledge of the existence of the order. However they did not show that he had notice of the terms of that order.

15. The hearing continued on 19 and 20 March 1986 and on 5, 6 and 7 May 1986. None of the respondents gave evidence, nor was there any cross-examination of the persons who made the affidavits relied upon by the applicants. Accordingly, the motion is to be determined upon that affidavit evidence (excluding those parts which were held to be inadmissible) together with certain documents which were placed in evidence.

16. The first question is whether the applicants have complied with Order 37 of the Federal Court Rules as to the service of the order of the Full Court, made on 17 December 1984 (the order), which order is said to have been disobeyed by the three respondents. Order 37 Rule 2, so far as material, contains the following provisions:

"2.
(1) Subject to the Rules, an order shall not be
enforced by committal or sequestration unless -

(a) the order or a certified or office copy thereof
is served personally on the person bound;

...
(2) Subject to the Rules, where the person bound by an
order is a corporation or organization the order shall
not be enforced by committal of an officer of the person
bound or by sequestration of the property of an officer
of the person bound unless, in addition to service under
sub-rule (1) on the person bound -

(a) the order or a certified or office copy thereof is
served personally on the officer;

...
(3) An order or a certified office copy thereof served
under this rule must bear a notice (naming the persons
concerned) that the person served is liable to
imprisonment or to sequestration of property if -

...
(b) where the order requires the person bound to
abstain from doing an act, the person bound
disobeys the order.

....
(5) Where a person liable to committal or sequestration
of his property by way of enforcement of a judgment or
order has notice of the judgment or order -

(a) by being present when the judgment is pronounced or
when the order is made; or

(b) by being notified of the terms of the judgment or
order whether by telephone, telegram or otherwise,

the judgment or order may be enforced by committal of
that person or by sequestration of his property
notwithstanding that service has not been effected in
accordance with this rule.

(6) The Court may dispense with service under this
rule."

17. It is clear that neither Mr. Findlay nor Mr. Shugg was served personally but Mr. Jolson of counsel on behalf of the applicants submitted that there had been proper service upon the respondent Society. Reliance was placed upon a number of matters, including the terms of Order 7 Rule 15 which is in the following terms:

"15.
(1) This rule shall operate for so long as section 146
of the Conciliation and Arbitration Act 1904 provides to
the effect of sub-rule (2) hereof.

(2) Service of any notice or process on the President,
Chairman or Secretary or at the registered office of an
organization shall be sufficient for all purposes."

18. In response to that contention Dr. Buchanan, of Queens Counsel, who appeared with Mr. Strugnell of counsel for the three respondents, advanced a number of submissions. It is not necessary to deal with all of them because I accept his submission that the action of putting a copy of the order under the door of the unattended office of the respondent Society did not constitute service "at the registered office" of the organization, within the meaning of Rule 15(2). In addition there is no evidence that the copy of the order put under the door bore "a notice ... that the person served is liable to ... sequestration of property if ... the person bound disobeys the order" (see Federal Court Rules Order 37 Rule 2(3)).

19. It may be added that there is no evidence that such a notice was endorsed on the copy of the order which was posted by the applicants' solicitors to the respondents' solicitors. That was one of the matters upon which the applicants sought to rely in putting a submission based upon Order 37 Rule 2 (5)(b) - the terms of which are set out earlier. I accept Dr. Buchanan's submission that that sub-rule does not apply unless the respondents had been notified of the "terms" of the order and that it would not have been sufficient for them to have been notified of the "substance" of the order, as contended by Mr. Jolson on behalf of the applicants. I accept that, in some cases, the terms of an order made by a court are, by reason of the nature of the conduct restrained by the court, capable of being described briefly but accurately; for example, an order to refrain from publishing a particular advertisement where the party bound by the order knows the text of the advertisement, (because it has been published previously) and accordingly knows precisely what it is that the court has restrained him from doing. In such a case it may be that a respondent could be "notified of the terms of the ... order ..." by a notification which did not set out the full terms of the advertisement (cf. McGarvie J. in Foley v Herald-Sun T.V. Pty. Ltd. and anor (1981) VR 315.

20. However, in the present case the order (the relevant terms of which are set out later) is expressed at some length and its precise text must be read in order to ascertain what conduct has been prohibited by the court. Even when the full text is read there is, in my respectful opinion, some doubt as to the meaning of the words "conduct of the kind described in paragraphs 2 or 3 hereof" - a matter which will be referred to later in dealing with charges C(iii) and C(iv). Accordingly, in my opinion it is not sufficient in the present case for the respondents to have been notified in general terms; for example that the appeal had been allowed or that the Full Court had granted injunctions. In my opinion it has not been shown that any of the three respondents had been "notified of the terms of the ... order". It may be noted that Mr. Shugg's belief as to the terms of the injunction was such that he answered in the affirmative Mr. Pullen's question: "Don't you know that there is a Federal Court Injunction which lets me work as a sub-contractor?..." Such a description of the effect of the order does not enable one to be confident that Mr. Shugg had before that time been "notified of the terms of the ... order".

21. I have also considered Mr. Jolson's argument that the court should infer that the full text of the order had been notified to the respondent Society and to Messrs. Findlay and Shugg by their solicitors. On the material I am not prepared to draw that inference. I also reject his submission that, by reason of the terms of the last paragraph of the reasons for judgment of Woodward J., as a member of the Full Court, the respondents were aware of the substance of the order of the Full Court. I do so because, as Mr. Jolson conceded, there was no evidence that a copy of the reasons for judgment of the Full Court, which were delivered on 11 February 1985, was received by any of the respondents at a time before the conduct said to constitute contempt of court. I am not prepared to infer, as submitted by him, that any of the three respondents received the reasons for judgment. In any event those reasons did not contain the terms of the order.

22. Mr. Jolson also sought an order under Order 37 Rule 2(6) dispensing with service of the order upon the respondents. I accept his submission that it would be open to the court to make such an order, in an appropriate case, at a time when the alleged contempt has already been committed. However, on all the material before the court in the present matter, I am not satisfied that any ground exists for making the order sought.

23. Such an order might well be appropriate if the court were satisfied that, as a result of action by the respondents to avoid service, it had not been practicable for the applicants to effect service of the order. In the present case there was evidence of certain difficulties encountered in December 1984 in attempting to serve the order. However, in February 1985 the court heard an application for an order permitting substituted service of the order of the Full Court and, alternatively, an order under Rule 2(6) dispensing with service. The court described the material filed in support of that application as "an appalling set of documents" and certain of the affidavits as being "quite extraordinary". The applicants' counsel decided not to pursue the application for substituted service in respect of any of the individual respondents but sought a ruling as to service upon the respondent Society. The court rejected the application in respect of service upon the respondent Society, saying "I am not satisfied on the material before me that it is a proper case ... it is so long since the last attempt to serve the union. I am not prepared to infer that the union office is still closed ..."

24. The rejection of that application was based upon the applicants' failure to make any further attempt to serve the respondents in the period between the end of December 1984 and the date of hearing that application, 18 February 1985. Notwithstanding the reasons given for that ruling, there is no evidence that the applicants have at any time during the period from the end of December 1984 until after the date of the first alleged contempt, (2 September 1985) taken any steps to serve the order of the Full Court upon any of the respondents. As Mr. Jolson conceded, "nothing further happened until September". No explanation has been proferred in the present hearing for the failure to take such steps.

25. The foregoing is sufficient to conclude the matter in favour of the respondents. However, as other matters were fully argued, it is desirable that they be dealt with - albeit less fully than would otherwise be the case.

26. The relevant terms of the order of the Full Court, made on 17 December 1984, are as follows:-

"2. Until the hearing and determination of the
Application herein or further order the firstnamed
Respondent whether by itself, its servants or
agents or howsoever otherwise be restrained from:

...
(b) attempting to make or enter into;

...
(e) procuring, inducing or attempting to induce a
person to make, enter into, give effect to or
enforce -

any contract, arrangement or understanding that
prevents or hinders a person acquiring or
continuing to acquire carpet laying or floor laying
services from any sub-contractor or independent
contractor, including any contract, arrangement or
understanding in the form or to the effect of that
set forth in the Schedule hereto.

3. Until the hearing and determination of the
Application herein or further order the firstnamed
Respondent, whether by itself, its servants or
agents or howsoever otherwise, be restrained from
engaging in any conduct which prevents or hinders -

(i) a person acquiring or continuing to acquire
carpet laying or floor laying services from
any sub-contractor or independent contractor
from whom the person has been accustomed to
acquire such services; or

(ii) any carpet layer or floor layer, who has been
engaged as a sub-contractor or independent
contractor by another person to supply carpet
laying or floor laying services, from
supplying or continuing to supply such
services to that person.

4. Until the hearing and determination of the
Application herein or further order each of the
secondnamed, thirdnamed and fourthnamed Respondents
be restrained from -

(a) aiding, abetting, counselling or procuring; or

(b) being in any way directly or indirectly
concerned in -

conduct of the kind described in paragraphs 2 or 3
hereof."

(The three spelling errors in the order taken out by the applicants' solicitors have been corrected in the above)

27. I shall deal separately with each paragraph in the amended Statement of Charge. A breach of paragraph 2 of the order is alleged by charge A(i), which read as follows:-

"A. (i) The firstnamed Respondent by its servant or
agent A. Findlay on the 2nd September 1985 at 61
Drummond Street, South Carlton in the State of Victoria
did wilfully and contumaciously contravene and disobey
the Order of the Full Court of the Federal Court of
Australia ("the Order") made the 17th December 1984 in
that it did on the said date and at the said place
attempt to make or enter into and attempted to induce
Graham James Harkness to make or enter into or give
effect to or enforce the contract arrangement or
understanding set forth in the Schedule to the Order."

In my opinion the evidence before the court does not establish any such attempt by Mr. Findlay - leaving to one side the question of whether, at the material time, he was acting as the "servant or agent" of the respondent Society. Mr. Harkness deposed that at the Victorian Branch office Mr. Findlay answered him with words "to the effect" of "You can have a Commercial Union ticket if you are a corporate company, drawing wages, paying into the Aust Superannuation scheme, on workers' compensation or if you become a waged employee for a floor covering's (sic) supplier". By that statement Mr. Harkness was given an option; he could make arrangements for the formation of a company or he could become an employee of an existing company.

28. As to the argument advanced by Mr. Jolson relying upon the words "attempted to ... give effect to or enforce the ... arrangement ...", I accept Dr. Buchanan's submission that any such "arrangement" (as well as the contract) was still alleged in the charge to be the "arrangement ... set forth in the Schedule to the Order".

29. The charge alleged an attempt "to induce". As to the meaning of those words a Full Court (Bowen CJ., Lockhart and Beaumont JJ.) in Yorke v Lucas (1983) 49 ALR 672 at 681 said that "(i)nducing a contravention" connoted "some act of compulsion by force or threat of force or some act of persuasion or stimulation aimed at ensuring that an act is committed which constitutes a contravention". In the light of the evidence as to the "option", Mr. Findlay cannot be said to have been aiming at ensuring that an act was committed which would constitute a breach of paragraph 2 of the order. Accordingly, charge A(i) cannot be sustained. It may be added that the contract which appears in the schedule to the order and is referred to in this charge, was on its face a contract to be entered into by a company and not by a natural person.

30. Charge A (ii), which alleged a breach of paragraph 3(ii) of the order, read as follows:-

"A. (ii) The firstnamed Respondent by its servant or
agent A. Findlay on the 2nd September 1985 at 61
Drummond Street, South Carlton in the State of Victoria
did wilfully and contumaciously contravene and disobey
the Order in that it did on the said date and at the
said place engage in conduct, to wit - refusing to issue
to Graham James Harkness an "OK Card" entitling the said
Graham James Harkness to work as a floor layer on any
commercial building site in Melbourne unless he signed
an Agreement in the form and to the effect of the
Agreement set forth in the Schedule to the Order - which
prevented or hindered the said Graham James Harkness a
carpet layer who had been engaged as a sub-contractor by
other persons to supply carpet laying services from
supplying or continuing to supply such services to those
persons;"

In my opinion, for the reasons given in dealing with charge A(i), namely the fact that Mr. Harkness was given an "option", the evidence before the court does not establish that Mr. Findlay on 2 September 1985 refused to issue to Mr. Harkness "an "O.K. card"... unless he signed an Agreement in the form ...".

31. Nor does the evidence establish that such a refusal, if it had occurred, had prevented or hindered Mr. Harkness as "a carpet layer who had been engaged as a sub-contractor by other persons to supply carpet laying services ...". There was no evidence either in his affidavit or elsewhere to support the allegation in that charge that he "had been engaged as a sub-contractor by other persons to supply carpet laying services ...". In his affidavit, sworn on 22 October 1985, Mr. Harkness said that he had "recently been approached by a number of floor covering suppliers to work on commercial building site jobs". However, the alleged breach by Mr. Findlay had occurred on 2 September 1985. There are other difficulties with this charge including its curious reference to the "O.K. card" being a card "entitling" Mr. Harkness to work as a floor layer on any commercial building site.

32. For these reasons charge A(ii) cannot be sustained.

33. Charge A(iii), which alleged a breach of paragraph 2 of the order, read as follows:-

"A. (iii) The firstnamed Respondent by its servant or
agent L. Kyriacou on the 3rd September 1985 at 61
Drummond Street, South Carlton in the State of Victoria
did wilfully and contumaciously contravene and disobey
the Order of the Full Court of the Federal Court of
Australia ("the Order") made the 17th December 1984 in
that it did on the said date and at the said place
attempt to make or enter into and attempted to induce
John Skilbeck to make or enter into or give effect to or
enforce the contract arrangement or understanding set
forth in the Schedule to the Order."

This charge alleges that the "attempt" was made by Mr. L. Kyriacou. On the affidavit evidence of Mr. Skilbeck, the conversation in support of the charge was a conversation with "a girl" at the Victorian Branch office of the respondent Society. The only evidence that the alleged "attempt" was made by Mr. Kyriacou was evidence that he "walked into the union office at that time" and that a statement made by "the girl" was made "in the said Kyriacou's presence". That evidence is plainly inadequate to sustain the charge. Its inadequacy is underlined by the fact that the statement by "the girl" to Mr. Skilbeck was made after she had apparently sought and obtained instructions from some other (unknown) person in the Victorian Branch office. It may be added that the attempt to prove this charge also encountered some of the difficulties raised in relation to charge A(i).

34. Charge A(iv), which alleged a breach of paragraph 3(ii) of the order, read as follows:-

"A. (iv) The firstnamed Respondent by its servant or
agent L. Kyriacou on the 3rd September 1985 at 61
Drummond Street, South Carlton in the State of Victoria
did wilfully and contumaciously contravene and disobey
the Order in that it did on the said date and at the
said place engage in conduct, to wit - refusing to issue
to John Skilbeck an "OK Card" entitling the said John
Skilbeck to work as a floor layer on any commercial
building site in Melbourne unless he signed an Agreement
in the form and to the effect of the Agreement set forth
in the Schedule to the Order - which prevented or
hindered the said John Skilbeck a carpet layer who had
been engaged as a sub-contractor by other persons to
supply carpet laying services from supplying or
continuing to supply such services to those persons;"

For the reason given in dealing with charge A(iii), namely, the fact that it alleges conduct by Mr. Kyriacou but the evidence goes no further than showing that he was physically present at the time when certain statements were made, this charge must fail. In addition, there was no evidence that Mr. Skilbeck had at that time "been engaged as a sub-contractor by other persons to supply carpet laying services".

35. Charge A(v), which alleged a breach of paragraph 2 of the order, read as follows:-

"A. (v) The firstnamed Respondent by its servant or
agent R. Shugg on the 25th October 1985 at 151 Mt.
Alexander Road, Flemington in the State of Victoria did
wilfully and contumaciously contravene and disobey the
Order of the Full Court of the Federal Court of
Australia ("the Order") made the 17th December 1984 in
that it did on the said date and at the said place
attempt to make or enter into and attempted to induce
Peter Robert Pullen to make or enter into or give effect
to or enforce the contract arrangement or understanding
set forth in the Schedule to the Order."

36. It should perhaps be noted at this stage that charges A(v), A(vi), A(vii) and A(viii) each alleged that the conduct occurred at 151 Mt. Alexander Road, Flemington. Mr. Pullen's affidavit evidence in support of each of those charges referred to events at that address. However, it also referred to events at a place other than the place referred to in those four statements of charge. It gave details of a conversation at the Victorian Branch office at 61 Drummond Street, Carlton South between Mr. Pullen and "a girl called Meagan" and of a telephone conversation between Mr. Pullen and Mr. Shugg, the latter then being at that Branch office. That evidence, relating to conversations at a place other than that set out in the charges, can not be taken into account in determining these four charges.

37. Charge A(v) encounters the same difficulty as that referred to in dealing with Charge A(i), namely, that the contract was to be entered into by a company and not by a natural person. Leaving that aspect to one side, I consider that the affidavit evidence of Mr. Pullen establishes that Mr. Shugg attempted to induce Mr. Pullen to enter into "the contract set forth in the Schedule to the Order". The question of whether Mr. Shugg was the servant or agent of the respondent Society will be dealt with later.

38. Charge A(vi), which alleged a breach of paragraph 3(ii) of the order, read as follows:-

"A. (vi) The firstnamed Respondent by its servant or
agent R. Shugg on the 25th October 1985 at 151 Mt.
Alexander Road, Flemington in the State of Victoria did
wilfully and contumaciously contravene and disobey the
Order in that it did on the said date and at the said
place engage in conduct, to wit - refusing to issue to
Peter Robert Pullen an "OK Card" entitling the said
Peter Robert Pullen to work as a floor layer on any
commercial building site in Melbourne unless he signed
an Agreement in the form and to the effect of the
Agreement set forth in the Schedule to the Order - which
prevented or hindered the said Peter Robert Pullen a
carpet layer who had been engaged as a sub-contractor by
other persons to supply carpet laying services from
supplying or continuing to supply such services to those
persons;"

This charge must fail because of the absence of any evidence that Mr. Shugg, at 151 Mt. Alexander Road, Flemington, refused to issue to Mr. Pullen an O.K. card. It also encounters two other difficulties referred to earlier in dealing with other charges, namely (a) that the "agreement" was to be entered into by a company and not by a natural person and (b) the reference to the O.K. card "entitling" Mr. Pullen to work.

39. Charge A(vii), which alleged a breach of paragraph 3(i) of the order of the Full Court, read as follows:-

"A. (vii) The firstnamed Respondent by its servant or
agent R. Shugg on the 25th October 1985 at 151 Mt.
Alexander Road, Flemington in the State of Victoria, did
wilfully and contumaciously contravene and disobey the
Order in that it engaged in conduct preventing and
hindering John Tucker a carpet supplier from acquiring
or continuing to acquire carpet laying services from
Peter Robert Pullen a sub-contractor unless the said
Peter Robert Pullen signed an agreement in or to the
effect of the agreement set forth in the Schedule to the
Order."

This charge failed to allege an essential element in any breach of paragraph 3(i) of the order, namely, that Mr. Pullen was a "sub-contractor ... from whom the person (Mr. Tucker) has been accustomed to acquire such services". Further, even if it had been alleged, there was no evidence that Mr. Tucker had "been accustomed to acquire such services". That charge must fail.

40. Charge A(viii), which alleged a breach of paragraph 3(ii) of the order, read as follows:-

"A. (viii) The firstnamed Respondent by its servant or
agent R. Shugg on the 25th October 1985 at 151 Mt.
Alexander Road, Flemington in the State of Victoria, did
wilfully and contumaciously contravene and disobey the
Order in that it engaged in conduct preventing or
hindering Peter Robert Pullen who was engaged as a
sub-contractor by John Tucker from supplying or
continuing to supply carpet laying services at 151 Mt.
Alexander Road, Flemington in the said State unless the
said Peter Robert Pullen signed an agreement in or to
the effect of the agreement set forth in the Schedule to
the Order."

The reference, in the latter part of this charge, to the question of Mr. Pullen signing an agreement encounters a similar difficulty to that referred to in dealing with charge A(i), namely, that the agreement was to be entered into by a company and not by a natural person.

41. I infer from those portions of Mr. Pullen's affidavit which were admitted in evidence that he had been engaged by Mr. Tucker to supply carpet laying services as a sub-contractor. Despite Dr. Buchanan's argument to the contrary, I accept that the evidence in Mr. Pullen's affidavit, as to what was said by Mr. Shugg at 151 Mt. Alexander Road, Flemington, did establish conduct preventing or hindering Mr. Pullen from supplying carpet laying services at that address.

42. Charges A(v) and A(viii) against the respondent Society, based upon the conduct of Mr. Shugg, lead to a consideration of the question of whether Mr. Shugg was, at the material time, the servant or agent of the respondent Society.

43. It may be added that although similar questions would arise as to whether Mr. Kyriacou and Mr. Findlay were, at the material times, acting as the servants or agents of the respondent Society, if the evidence led in respect of those other charges had been sufficient in other respects, those questions need not be addressed because, as the reasons given earlier show, the applicants' evidence has not been sufficient. Accordingly, no detailed reference will be made to the offices held by Mr. Kyriacou and Mr. Findlay nor to the rules relating to those offices.

44. On the evidence Mr. Shugg was an organiser of the Victorian Branch of the respondent Society. There is no evidence as to the terms of his employment and no evidence of any express authority conferred upon him by the respondent Society or by any Committee or officer of the Society having authority to do so. The need for evidence was emphasised in The Waterside Workers' Federation of Australia v Burgess Brothers Limited [1916] HCA 2; (1916) 21 CLR 129 where Griffith CJ. said (at 134)

"... in a Court of Justice mere surmise or suspicion is
not suffficient. A person or a corporation is not in a
Court of Justice held liable for the actions of others
unless his or its authority to do the actions on his or
its behalf is established by evidence."

That statement concerned a civil action for damages for conspiracy to cause the plaintiffs to break their contracts with men who were engaged in working for them. Barton J. said (at 134)

"... If the Hobart branch had no authority from the
present appellants for their action, the case against
the latter fails for want of evidence, even if the
Hobart branch, or its members, did actually conspire and
combine to cause the respondent company to break their
contract with their customers ..."

His Honour also said (at 136):

"... There being no express authority conferred either
by antecedent instructions or by the rules of the
appellants, is an authority to be implied from the
relation between it and the local branch? I find no
circumstances sufficing to raise that implication, for I
find nothing in the relative positions of the two bodies
to warrant the supposition that the one is responsible
for the acts of the other not expressly authorized.
Indeed, there is nothing to show that when the crucial
action was taken at Hobart the Waterside Workers'
Federation knew of what was being done, nor has any
document been referred to which would show that it was
at that time even consulted as to the course of action
to be taken."

45. The time "when the crucial action was taken" in the present matter was September-October 1985. Applying the words of Barton J. to the present matter, the evidence does not establish that the respondent Society "was at that time even consulted as to the course of action to be taken" i.e. consulted by the Victorian Branch, bearing in mind that it was at the office of that Branch at 61 Drummond Street, South Carlton, that there occurred the events detailed in the affidavits in support of charges A(i), A(ii), A(iii), A(iv), B(i) and B(ii).

46. I am not, of course, finding affirmatively that the respondent Society and its Federal Officers were not consulted as to any relevant course of action. It may well be that they were, but, as Griffith CJ. said in Burgess, in the passage quoted earlier, "mere surmise or suspicion is not sufficient". The affidavit evidence of Mr. Skilbeck (referred to earlier in dealing with charge A(iii)) as to words said at the Victorian Branch office in the presence of Mr. Kyriacou is not sufficient, in my opinion, to establish that the respondent Society was aware of what was being said in the Branch office. This follows from the fact that at that time Mr. Kyriacou held the office of Secretary of the Victorian Branch as well as being Secretary-Treasurer of the respondent Society. It cannot be assumed that he passed on to the respondent Society as such, or to the President or other Federal officers, all knowledge that he obtained as Branch Secretary. Further, the certificate of the Deputy Industrial Registrar tendered in evidence by the applicants, which stated that Mr. Kyriacou held the office of (Federal) Secretary-Treasurer, nonetheless gave his occupation as "Branch Secretary". That evidence is quite consistent with Mr. Kyriacou being a full time officer of the Victorian Branch, whose duties as (Federal) Secretary-Treasurer occupied only a small proportion of his time. There is no evidence on that aspect.

47. Bearing in mind the need for evidence - instead of mere suspicion - the present case is noteworthy for the absence of evidence; in many instances the absence of evidence is due to the failure by the applicants or their solicitors to take steps at an earlier stage. I have already referred to the failure to serve upon the respondents the order of the Full Court. Further, there is a reference in a letter, dated 23 November 1984, to "the matter" having been the subject of a notification to the Australian Conciliation and Arbitration Commission, but there was no evidence of what transpired at any hearings in the Commission. Reference was made to a ruling by Gray J. in proceedings in 1984 - without details being given of the ruling or of the reasons for it - but no attempt was made to explore that aspect in the present hearing.

48. As to the role played by the respondent Society or by Federal officers since the date of the order of the Full Court, there was no evidence that the applicants or their solicitors, at any time relevant to the present proceedings, ever discussed with any Federal officer of the respondent Society any aspect of the matters; nor was there any evidence of any letter, telegram or telex sent by the applicants or their solicitors to any Federal officer or to the respondent Society itself at any relevant time. In considering whether the respondent Society was in breach of the order, it may be noted that Mr. Jolson conceded that there was no evidence that the respondent Society had at any time since the Full Court order, made on 17 December 1984, entered into an agreement with any company in the form or to the effect of that set out in the schedule to the order of the Full Court. The absence of any such evidence is consistent with a decision by the respondent Society to obey the order, irrespective of any action taken by the Victorian Branch. It may be added that the evidence in the case all related to Victoria.

49. The applicants asked the court to infer that the actions by Mr. Shugg, the subject of the charges, were actions by him as the servant or agent of the respondent Society. Their counsel did his best with the evidence available, including various documents which were in existence during a period from November 1984 to September 1985. However, those documents in their context have failed to persuade me that the inference should be drawn that the actions of Mr. Shugg, an organiser of the Victorian Branch, were actions as the servant or agent of the respondent Society.

50. The applicants also sought to rely upon the rules of the respondent Society and the rules of its Victorian Branch in support of their contention that Mr. Shugg was acting as the servant or agent of the respondent Society. Before turning to the terms of the rules, it is desirable to examine the principles, enunciated by the Full High Court, relevant to a consideration of union rules, including the questions of whether there can be "no presumption of authority for the agent to do what the principal could not lawfully do" and whether a "rule must be construed as authorizing the Branch to settle local disputes by legal, not illegal, methods".

51. In Burgess Isaacs J. (at 138) said:

"... Consequently, on the well established principles of
law - the first, that of two reasonably possible
intendments that which is in favour of legality is
preferably accepted (Co. Litt. 42a; Russell v.
Amalgamated Society of Carpenters and Joiners (1912)
A.C., 421, at pp. 435, 436, and Amalgamated Society of
Engineers v. Smith [1913] HCA 44; 16 CLR 537, at p 566), and the
second, that there is no presumption of authority for
the agent to do what the principal could not lawfully do
(Poulton v London and South Western Railway Co. L.R. 2
QB, 534, and Walters v. Green (1899) 2 Ch, 696, at p
703) - rule 16 cannot be read as impliedly giving
authority to commit a tort or other unlawful act."

52. Burgess was cited with approval by Knox CJ. in The Commonwealth Steamship Owners' Association v The Federated Seamen's Union of Australasia [1923] HCA 40; (1923) 33 CLR 297 at 303. In the same case Isaacs and Rich JJ. (at 307) rejected an argument that the decision of a Branch meeting constituted a breach by the registered organization, saying:-

"It was said that the mere fact of that decision being
made at the Branch meeting constituted a breach by the
organization of the term of the award referred to. The
way in which that argument was presented was as
follows:- By the registered rules of the respondent
organization, Branches are established; and it was
contended that each Branch so completely represented the
whole organization at its own locality that whatever it
did, rightly or wrongly, must be taken to be the act of
the whole organization. There are, by rule 4, six
Branches recognized, namely, at Brisbane, Newcastle,
Sydney, Melbourne, Port Adelaide and Fremantle. The
argument went so far as to say that a Branch resolution
at Newcastle, such as was passed in Melbourne, would
constitute a breach by the whole organization even
though contrary resolutions were passed in Sydney and at
every other Branch. We cannot accept so sweeping an
argument. The Union is composed of members as its
units. For convenience, Branches are established at
large shipping centres, but the government and control
of the Union as a corporate or quasi-corporate body is
vested in a general meeting of the members, the chief
executive authority being committed to a Committee of
Management following the instructions of the meeting of
members. A Branch has its own business; but its own
Branch business is not the business of any other Branch,
and still less the business of every other Branch, or of
the Union as a whole."

Again, Higgins J. said (at 310-311):

".. But even if we can fairly treat the resolution of
the Victorian Branch as an aiding of job control, it was
a resolution of the Branch, not of the Union. Counsel
for the Association, however, have examined the rules of
the Union, and contend that the action of the Branch is
action of the Union. In particular, reliance is placed
on rule 71: "In the event of a dispute occurring as to
wages or working conditions in any State, the members of
the Branch in such State may take such steps as will
lead to an immediate settlement of the dispute, but if
there should be any likelihood of the dispute extending
beyond the limits of the State, the Branch officials
shall immediately notify the General President and the
General Secretary, and these two officials shall take
such steps as the necessity of the case requires." But,
in the first place, if the Branch exercise this power to
try to settle a dispute confined to a State, the action
which it takes is not necessarily the action of the
Union. A Branch cannot usually be treated as an agent
of the Union, so as to make the acts of the Branch the
acts of the Union (Denaby and Cadeby Main Collieries
Ltd. v. Yorkshire Miners' Association (1906) AC, 384;
Smithies v. National Association of Operative Plasterers
(1909) 1 KB, 310). Counsel cannot point to any clause
in the rules of the Union that prevents these cases from
applying to this case."

He went on to say (at 312):

"... There is nothing in all this to suggest that the
Branch's action is to be treated as the action of the
Union. But even if rule 71 is to be treated as making
the Branch an agent of the Union, the rule must be
construed as authorizing the Branch to settle local
disputes by legal, not illegal, methods; and no act of
the agent can impose on the principal criminal liability
for breach of the award unless the Union itself be
proved to take part in or authorize the commission of
the breach (Chisholm v Doulton (1889) 22 QBD, 736;
Roberts v. Woodward (1890) 25 QBD, 412; Emary v. Nolloth
(1903) 2 KB, 264)."

Lastly, Starke J. said (at 315-316):

"The relation of the Union and the Branches under these
rules is not very clear, but they do not, in my opinion,
constitute the Branches the Union for local purposes,
nor give them any power to commit or bind the Union or
other members of the Union by their resolutions
(Waterside Workers' Federation of Australia v. Burgess
Brothers Ltd. [1916] HCA 2; (1916) 21 CLR 129; Denaby and Cadeby Main
Collieries Ltd. v. Yorkshire Miners' Association (1906)
AC, 384; Smithies v. National Association of Operative
Plasterers (1909) 1 KB, 310). The Branches have, no
doubt, some powers of self-government with respect to
local affairs, but those powers belong to them as
independent units and not as representatives or agents
of the whole Union."

53. It may be noted that, in that case, Isaacs and Rich JJ. also said (at 308) that

"... no Court can act on mere suspicion, particularly
when the consequences are of a penal nature."

54. Mr. Jolson referred to a large number of the rules of the respondent Society (the Federal Rules) and of the rules of the Victorian Branch (the Branch Rules). It is not necessary to refer to all of them. He contended that, on a fair construction of the rules as a whole:-

"... in matters of federal union policy the Victorian
Branch and any person purporting to act in furtherance
of that policy, is doing so as agent of the federal
organisation and no real distinction can be drawn
between the Victorian Branch and the Federal
organisation..."

55. He pointed out that Federal Rule 7(A)(1) provided that the "supreme governing authority of the organisation shall be the Federal Council ..." and that that council had power under Federal Rule 7(B)(a) "to establish Branches ... and generally to control Branches and the members thereof ...". He placed some emphasis upon Federal Rule 30(2) which included the following provision:-

"30 - Authority of Federal Council over Branches

...
(2) If a State Committee of Management, State Branch
Executive or the offices of a Branch refuses or
fail to comply with these Rules or with a lawful
resolution of the Federal Council or lawful
direction of the Federal Executive, the Federal
Executive may, after enquiry, determine that the
State Committee of Management, State Branch
Executive or the officers of the Branch have acted
in a manner prejudicial to the good order and
government of the Union."...

56. Mr. Jolson also placed some emphasis upon Branch Rule 19(b) and (c) which provided as follows:-

"19. Submitting Industrial Disputes to Conciliation and
Arbitration

...
(b) If any industrial dispute as to the wages or
working conditions of members in the State of
Victoria arises the Branch Secretary shall report
the circumstances to the Federal Executive as
required by the Federal Rules.

(c) The Branch Executive if so authorised by the
Federal Executive may negotiate with employers on
the matters in dispute and with the concurrence of
the Federal Executive may make an agreement with
the employers concerned for the settlement of the
dispute and cause the same to be filed or recorded
with the appropriate Industrial Authority." ...

However those sub-rules in my opinion should not be read as limiting in any way the terms of Victorian Branch Rule 19(a) which provides as follows:-

"19.
(a) The Branch shall have autonomy in matters
affecting members of the branch only and matters
concerning participation in any state Industrial
Conciliation and Arbitration System." ...

This sub-rule is the Branch equivalent of Federal Rule 28(b). If sub-rules 19(b) and (c) of the Branch Rules are inconsistent with Federal Rule 28(b), then "the latter shall prevail and the former to the extent of the inconsistency shall be invalid" (Federal Rule 29(3)).

57. In the light of the passages quoted from both Burgess and the Seamen's Union case, in my opinion the rules relied upon by Mr. Jolson do not support the applicants' submission - particularly when regard is had to Federal Rule 28 which includes the following provisions:-

"28 - Branches of the Society
(a) For the purpose of facilitating the work of the
Federal Council, a Branch may be constituted in
each State and in any Federal Territory. Such a
Branch shall consist of all the members resident
in or employed within the State or Federal
Territory and it shall have power to constitute
sub-branches and to make Rules and by-laws under
the Federal Rules for the purpose of carrying
out the organisation of the Branch and the
objects of the Federation and the welfare of the
members.

(b) Branches shall have autonomy in matters
affecting members of the Branches only and
matters concerning participation in any State
Industrial Conciliation and Arbitration system."

58. Mr. Jolson conceded that there is no evidence as to whether the Victorian Branch existed before the registration of the respondent Society or was created by the Society after its registration (cf. Barton J. in Burgess at 135). I accept Dr. Buchanan's submission that the applicants have not established that the conduct the subject of these proceedings was not conduct in "matters affecting members of the" Victorian Branch only. I also accept his submission that there is no evidence that the Victorian Branch does not participate in the Victorian industrial system cf. Imlach v Daley (1985) 60 ALR 377.

59. The applicant sought to meet the principles enunciated in Burgess and the Seamen's Union case by relying upon what was said by Fullagar J. (with whom Dixon CJ. and Kitto J. agreed) in Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 Fullagar J. said (at 54-55):

"... whatever the rules may do or fail to do, they have,
in my opinion no application to the present cases for
the reason that the "Hobart Branch" of the federation is
not an "unincorporated society, fellowship, club or
association". It has no separate identity - no
existence apart from the registered organization, of
which it is an integral and inseverable part. Its
members are merely a section of the total membership of
the federation - locally organized for the sake of
convenience, but in no respect independent of the
federation, and in all respects subject to the control
of the federation. The branches are permitted within
limits to make rules of their own, but the rules which
they make derive authority from the rules of the
federation."

(At p. 81)"... But in truth, as has been said, the
branch has in law no existence separate from that of the
federation. It is merely an aggregate of members which
is an integral part or section of the whole federation,
having that degree of autonomy which is permitted to it
by or under the constitution of the federation. It
represents the federation in the port of Hobart. In and
for the port of Hobart it is, so to speak, the
federation."

60. However, in that case there was an express finding of fact by the trial judge which was accepted by the Full High Court. As Fullagar J. said (at 81):

" ... There was abundant evidence to support his
Honour's finding that the continued formation of those
lines and the obstruction of the Hurseys' path to work
was not a matter of mere spontaneous action on the part
of the individual members of the branch, but was
organized and directed as a branch activity ..."

(at 82)"... But the members of the governing body of the
federation were well aware from the beginning of what
was going on, and the federation made it known to the
branch, and took steps to make it known to the public,
that the branch had their full support and sympathy in
"the struggle ..."

61. The latter passage, in my opinion, shows that Williams v Hursey (supra) was based upon particular findings of fact. There was "abundant evidence", as Fullagar J. said, of the actions being "organized and directed as a branch activity" and it was clear on the evidence that the branch in so acting had the "full support" of "the members of the governing body of the federation", and that the federation had taken steps "to make it known to the public, that the branch had their full support..." The passages from the judgment of Fullagar J. relied upon by the applicants should not be read, in my opinion, as impliedly cutting down the principles enunciated by the Full High Court in Burgess and in the Seamen's Union case (supra). In this connexion it should be noted that Burgess was itself referred to in Williams v Hursey (at p. 82) by Fullagar J. - on a different point but without any suggestion that it was no longer a correct statement of the law.

62. On the evidence, including the rules of the respondent Society and of the Victorian Branch, read in the light of the passages quoted earlier from the judgments of the Full High Court, I am not satisfied that Mr. Shugg, an organizer of the Victorian Branch, was at any material time acting as a "servant or agent" of the respondent Society. Accordingly, the charges against the Society, based upon the actions of Mr. Shugg, cannot be sustained.

63. Charge B(i), which alleged a breach of paragraph 4 of the order, stated that Mr. Findlay "did aid abett (sic) council (sic) procure and was directly and indirectly concerned in the (sic) conduct of the kind described in" charge A(i). Charge B(ii) was in virtually identical terms (but with somewhat better spelling), save that it referred to "conduct of the kind described in" charge A(ii). For the reasons given earlier in dealing with charges A(i) and A(ii) against the respondent Society, it is clear that Mr. Findlay has not been shown to have committed the acts alleged.

64. Accordingly charges B(i) and (ii) are not sustained.

65. Charges C(i) and C(ii) were charges against Mr. Shugg but each was withdrawn by the applicants.

66. Charge C(iii), which alleged a breach of paragraph 4(a) and (b) of the order, read as follows:-

"C (iii) The fourthnamed respondent R. Shugg did on
the 25th October 1985, at 151 Mt. Alexander Road,
Flemington in the State of Victoria, wilfully and
contumaciously contravene and disobey the Order in that
he did aid abett (sic) counsel and procure and was
directly and indirectly concerned in conduct of the kind
described in paragraph A(vii);"

67. Charge C (iv) was in identical terms, save that it referred to "conduct of the kind described in" charge A(viii).

68. Mr. Jolson, on behalf of the applicants, appeared to concede (Transcript 912 but see 914) that neither charge C(iii) nor charge C(iv) could be sustained if charge A(vii) or charge A(viii) respectively against the respondent Society was not established. The concession was presumably based on an assumption as to the meaning of the words appearing in paragraph 4 of the order of the Full Court; an assumption that the words "be restrained from ... being ... concerned in conduct of the kind described in paragraphs 2 or 3 hereof" refer to conduct which is not merely "described" but is also restrained, being conduct by the respondent Society "by itself, its servants or agents or howsoever otherwise". Doubtless there is much to be said for that assumption - particularly when regard is had to the need for certainty in an order with possible penal consequences. I shall treat the words as having that narrower meaning. Although no such submission has been put by the applicants, it could be argued that the words restrain the individual respondents from themselves engaging in conduct of that kind - irrespective of whether the respondent Society has so engaged. In that connexion it may be noted that under the interim orders made by Jenkinson J. in November 1984 these respondents were expressly "restrained from preventing or impeding or hindering the carrying out of carpet laying work ..."

69. On that interpretation of the order of the Full Court charges C(iii) and C(iv) against Mr. Shugg can not be sustained because the charges against the respondent Society, based upon his actions, have not been sustained.

70. For the reasons given, the applicants having failed to establish the elements required to establish any of the charges made against the three respondents, the orders sought by them are refused and their motion is dismissed.