Re Robert Charles Howard v Norman Leslie Gallagher [1989] FCA 41; 27 IR 240 (2 March 1989)

FEDERAL COURT OF AUSTRALIA

Re: ROBERT CHARLES HOWARD
And: NORMAN LESLIE GALLAGHER
Nos. VI12 and 13 of 1986
FED No. 53
Industrial Law
27 IR 240

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.(1)

CATCHWORDS

Industrial Law - Conciliation and Arbitration Act - offence - speaking words calculated to bring Commission or Commissioner into disrepute - meaning of "calculated" - whether statement must be proved to be false - effect of extent of publication of statement - whether actual interference with operations of Commission an element - effect of other criticism.

Industrial Law - penalty - Commission ceased to exist - previous conviction - selective prosecution - public confidence in statutory tribunals.

Conciliation and Arbitration Act 1904, s.182(1)

Industrial Relations (Consequential Provisions) Act 1988, ss.3, 9

HEARING

MELBOURNE
2:3:1989

Counsel for the prosecutor: Mr A. Kirkham Q.C. with Mr Lex

Lasry

Solicitors for the prosecutor: Legal Branch, Dept of Labour

Counsel for the defendant: Mr J.L. Dwyer Q.C. with Mr M.
Bromberg

Solicitors for the defendant: Messrs Holding Redlich

ORDER

The first charge, in VI12/86, be dismissed.

That the defendant be convicted, in VI3/86, of the offence against s.182(1) of the Conciliation and Arbitration Act 1904 with which he is charged in those proceedings.

The defendant pay a fine of $250 in relation to the said offence.

A stay of 21 days be granted.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

These are two prosecutions, heard together, under the Conciliation and Arbitration Act 1904, in which it is alleged that the defendant committed an offence under s.182(1) of the Act. The charges were heard together, by consent.

2. The first charge is that the defendant committed an offence on 4 April 1986 by speaking words calculated to bring a member of the Australian Conciliation and Arbitration Commission, namely the Honourable Mr Justice J.T. Ludeke, into disrepute. The second charge is of committing an offence against the same section on the same date by speaking words calculated to bring the Commission into disrepute.

3. The relevant part of the section reads as follows:

"A person shall not -
...
(d) by writing or speech use words calculated -
...
(ii) to bring a member of the Commission or
the Commission into disrepute.
Penalty: $500 or imprisonment for 12 months, or
both."

4. The statute in question has, since the prosecution was instituted, been repealed. The relevant provision is to be found in the Industrial Relations (Consequential Provisions) Act 1988, s.3, Schedule 1. However, s.9 of the same Act says that:

"(1) Where, immediately before the commencement:
(a) a proceeding in a matter arising under
the previous Act was pending in the
Court; and
(b) the hearing of the proceeding (other
than any interlocutory hearing) had
started, but had not been completed;
the Court may complete the hearing and
determination of the proceeding as if the
previous Act had not been repealed."

5. It goes on to say that the section has effect subject to Division 5, but nothing in that division affects this case. Although the Commission has been abolished, I shall speak of it, for convenience, in the present tense; it has been replaced by a body having somewhat similar functions.

6. On 4 April 1986, the Full Bench of the Commission gave a decision on an application under s.4 of the Building Industry Act 1985 (Cth) in relation to the Australian Building Construction Employees' and Builders Labourers' Federation (BLF). The defendant is identified in the decision as the general secretary of the Federation and the secretary of its Victorian branch. It is also mentioned in the decision that the State of Victoria was granted leave to intervene in the proceedings in support of the application before the Commission, which was made by the Minister for Employment and Industrial Relations, Mr Ralph Willis. Some passages in the decision were critical of the Federation and of the defendant in particular, although it must be said that a large part of the decision is a chronicle of relevant events rather than comment upon them. Although the formal order of the Commission is not included in the material before me, it appears from the decision (which would in a court be called the reasons), that the application succeeded and a declaration was made as to the satisfaction of the Commission under s.4(1) of the 1985 Act I have mentioned.

7. Shortly after the delivery of the decision, the defendant was interviewed by television and radio journalists. A video tape of the interview is in evidence, and also a transcript which, in my opinion, is substantially accurate (exhibit 4). During the interview the following occurred:

Interviewer: "Mr. Justice Ludeke has said that the Committee of
Management has led the rank and file from one
disaster to another in handing down his decision.
Would you like to comment on that?"
Defendant: "Well, after all Justice Ludeke did appear for the
Master Builders of New South Wales for years and
was no doubt only making statements which the
M.B.A. would agree to."

8. A little later, there occurred this exchange:

Interviewer: "Does the decision to you have any credibility at
all?"
Defendant: "None whatsoever, after all it was people like Mr.
Willis and Mr. Crabb that probably wrote it for the
judges."

9. Of the persons mentioned in these passages, Mr Justice Ludeke presided in the Commission, I have already identified Mr Willis, and Mr Crabb was, at the relevant time, Minister for Employment and Industrial Affairs in the Government of the State of Victoria and the Minister responsible for that Government's participation in the proceedings before the Commission.

10. The prosecutor proved the matters I have already mentioned, but did not adduce any additional evidence directed to showing that the statements complained of were calculated to bring Mr Justice Ludeke or the Commission into disrepute. The defendant, on the other hand, while not denying that the statements were made, produced witnesses in support of the proposition that exercises of the Commission's functions are accompanied by lively public controversy of which the statements made by the defendant should be regarded as being merely an example. It was contended that such statements could therefore have no signficant effect on the Commissioner's reputation or on that of Mr Justice Ludeke.

11. It should be remarked at the outset that the two witnesses called by the defendant on this point, Messrs McGuinness and McCallum, were not at all in agreement. Before dealing with that aspect further, however, it is convenient to mention a point of construction which arose, as to the meaning of the word "calculated".

12. It was argued for the prosecutor that "calculated" in this context means "likely", whereas the defendant said it means "intended". I was invited to resolve that point during the hearing, but declined to do so at that stage.

13. In O'Sullivan v. Lunnon [1986] HCA 57; (1986) 67 ALR 423 at 426 Gibbs C.J. said that:

"The word 'calculated' may be used in two senses, as
meaning either devised with forethought, or
'likely'."

14. The same two meanings, in substance, were contended for here. Brennan J. said of the word:

"If it is used in a phrase such as 'calculated to
deceive' to describe a set of words ... or a
company's title ..., it describes a quality of the
set of words or of the title irrespective of any
actual intention to deceive or purpose of deceiving
on the part of the person who uses the words or
adopts the title".

15. Counsel for the prosecutor relied upon this passage, pointing out that here the word calculated is applied to a set of words.

16. In Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419, a prosecution was brought under s.83 of the Commonwealth Conciliation and Arbitration Act 1904, which then provided, among other things:

"No person shall wilfully ... by writing or speech
use words calculated ... to bring the Court into
disrepute, or be guilty in any manner of any wilful
contempt of the Court."

17. The Court referred to in the section was the Commonwealth Court of Conciliation and Arbitration, whose president was Higgins J. The words there complained of criticised the judge for his ignorance of "notorious facts" as to the state of affairs in industry, suggested that the public might feel amused at the judge's "display of innocence" and implied that the Court was too detached from the facts of industrial life. The defendant, having been convicted before a magistrate, appealed successfully to the High Court. Knox C.J., Gavan Duffy and Starke JJ. in a joint judgment, having made some general remarks about the section as a whole, came to deal with this specific question whether the words were "calculated to lessen or discredit the authority or prestige of the Court in the minds of reasonable people" (at p 425).

18. I take this to be a reference to the part of the section and of the charge which referred to "words calculated ... to bring the Court into disrepute". The judges held the defendant innocent of that charge also, on the ground that reasonable people would know that the President was merely following the accepted practice in refusing to assume the truth of facts without due proof (pp 425, 426).

19. This construction of very similar words appears to me more consistent with the submission of the prosecutor than that of the defendant in this case. The High Court thought it enough, as it appears to me, to reach the conclusion that reasonable people would not be likely to think less of the Court by reason of the statement complained of; the High Court declined to consider the state of the defendant's mind (p 425). In the other judgment, that of Isaacs and Rich JJ., is to be found another remark suggesting that it is the likely effect of the statement in fact which matters:

"Words calculated to bring a Court into disrepute
are words imputing to it, not erroneous judgments
or a mistaken view of the subject it deals with,
but, as in the case of individuals, conduct or
character that, if true, would forfeit the respect
of the community".

20. I therefore accept the prosecutor's contention as to the meaning of "calculated" - i.e. "likely". I am far from convinced, however, that that conclusion is damaging to the defendant. Were the question whether the defendant intended to belittle or discredit the Commission in the minds of the public, so that less weight would be attached to the Commission's findings against the defendant and the BLF, an answer favourable to the defendant might be difficult to make. The question whether the words were in truth likely to bring Mr Justice Ludeke or the Commission into disrepute seems to me a more difficult one.

21. I note at the outset that there may be relatively minor offences, as well as major ones, against the provision; the prosecution does not have to show that the words were calculated to bring a member of the Commission into great disrepute as the penalties provided demonstrate; there may be quite a range of seriousness in the offences committed.

22. It is no doubt debatable whether, in a prosecution of this type, the Court is entitled to act on judicial knowledge as to the Commission's reputation, but I am content to act upon evidence called for the defendant on the point. I find that the Commission, although performing a difficult function in a fashion which gives rise to much public debate, has high standing in the community. Many people criticize its workings and indeed criticize the very idea of having a Commission with such functions. The evidence also discloses that the Commission is, from time to time, subjected to attacks having a personal tone and an offensive character. It appeared to be suggested on behalf of the defendant that these tactics have effectively destroyed the Commission's reputation, but I do not so find. It appears from the evidence, particularly that of Mr McCallum, that public criticism of the Commission is generally directed to issues rather than personalities, that is, is of a responsible rather than irresponsible kind. Insofar as the defendant's case relied on the suggestion that mere abuse of the Commission has come to be accepted as a legitimate form of comment, I reject that. Further, I hold, as mentioned above, that it is not necessary, for an offence to be committed, that the writing or speech charged be calculated to cause by itself any great damage to the reputation of the Commission or a member. A reputation may be in the end suffer irremediable damage from numerous small attacks without any single major assault. It is evident that the Commission has depended, as will its successor under its new legislation, on public acceptance of its decisions rather than coercion; preservation of its reputation seems to be, therefore, of importance.

23. As to the first statement charged, with reference to Mr Justice Ludeke, it was argued for the defendant that it did not necessarily attribute any impropriety to its subject. It was contended by Mr Dwyer that if it were the fact that Mr Justice Ludeke had appeared for the Master Builders of New South Wales for years, the defendant might truly have thought that his having done so would naturally tend to make him see disputes in which the BLF was involved from the employers' rather than the BLF's point of view. Counsel for the prosecutor, in answering this argument, appeared to attach particular importance to the defendant's use of the word "to" rather than "with" at the end of the sentence, suggesting that the use of the latter word might have removed any vice from the statement. I would remark that if the matter depends upon such fine shades of meaning, it is difficult to see how there can be a conviction. My initial inclination was to think that the statement about Mr Justice Ludeke would necessarily be taken to mean that, because of the nature of his practice at the bar, he had deliberately and improperly favoured a former client in the proceedings for a declaration against the BLF; so read, the statement would constitute an offence. In the end, however, I have been persuaded by Mr Dwyer on the point and am not satisfied beyond a reasonable doubt that the statement necessarily attributes any improper conduct to Mr Justice Ludeke. If the defendant had merely said that a member of the Full Bench had often acted, when at the Bar, for one of the successful parties in the case, and that the statements in the decision accorded neatly with the views of that party, it is difficult to see that an offence could be found to have been committed; yet what was in fact said was not markedly different from the statement just postulated.

24. In short, I have a doubt as to the first charge, and it must be dismissed. It should be added that my conclusion is, of course, based upon the particular section under which the defendant was charged, and not on the common law of contempt, which is inapplicable to the Commission and its members.

25. I have, in the end, decided that a different conclusion must be arrived at as to the second charge. The major suggestion which counsel for the defendant made by way of alleviating the obvious implication of this statement was that it did not necessarily impute any impropriety to the Commission, but perhaps meant only that the Commission had adopted submissions made on behalf of Messrs Willis and Crabb. As I have explained above, Mr Willis was the applicant in the proceedings, and Mr Crabb the Minister ultimately responsible for the intervention of the State of Victoria on the side of the applicant. I cannot think that a reasonable hearer of the words spoken by the defendant with respect to Messrs Willis and Crabb would take from them anything other than a plainly derogatory meaning that the Commission had probably acted improperly in that it had entrusted to parties before it, presumably in secret, the task of writing its decision.

26. That is not, however, the end of the points raised by Mr Dwyer on behalf of the defendant in respect of that charge. He also argued, in effect, that one must consider the credibilility of the defendant. The (to my mind, rather strange) plea was advanced on the basis of the evidence of the witness, Mr McGuinness, that members of the community generally would take no notice of the defendant's views.

27. The argument gains some strength from the occasion - an impromptu interview shortly after the decision was handed down - and from the outlandish nature of the accusation against the Commission. No one familiar with the workings of the Commission, such as Mr McGuinness, would have taken any notice of the suggestion that the writing of the decision might have been delegated to the parties, but the notion that that could happen would not necessarily appear so fanciful to people, and there are no doubt many such, with no particular interest in or knowledge of the Commission's workings.

28. Mr Dwyer also contended that there could be no conviction because it was a necessary part of the prosecution's case to show that the statement made was false - specifically, as to the charge presently being considered, to show that it was not true that the decision was written by persons such as Messrs Willis or Crabb. In my opinion, that is not so. It is, of course, plain that on its literal construction, the provision does not make proof of the untruth of the statement in question a necessary element of the offence. Counsel on both sides, for various purposes, referred me to the analogy of the law of contempt as being helpful in divining the legislative intention. Neither, however, referred me to any authority on the specific point whether, to prove a charge of contempt of court consisting in attributing impropriety to a court, it is necessary to show positively that what is suggested is false. I have myself been unable to find any explicit discussion of the point; in every case I have seen, falsity seems to have been merely presumed. That might be because the law of contempt would be of little use if a vague imputation of impropriety addressed to, for example, a court with numerous members, could be punished only by proceedings in which each member would have to be called to deny the accusation. On the other hand, the law cannot be that a truthful accusation of misconduct made in good faith to secure a redress is a contempt; truth must be able to be put in issue in such a case, at least when the accusation is specific. Here it was not. The terms in which the defendant made the remark about the likely authorship of the judgment itself implied an admission that he did not know the accusation made to be true. At least in such circumstances, it is my opinion that the section does not by implication require that the prosecutor establish the untruth of the accusation.

29. Mr Dwyer who, if I may so, conducted the case with great ability on behalf of the defendant, also argued that there should be taken into account the lack of proof of the full scope of publication of the statement. It was established that Channel 10 had broadcast part of what was complained of, namely the relevant passage dealing with Messrs Willis and Crabb, but there was no evidence as to whether any other television or radio station did so.

30. In my opinion, such evidence was plainly unnecessary. The offence was committed when the statement was made. The likelihood of its damaging the Commission has to be assessed having regard to the fact that it was made by a well-known person to a number of reporters, in circumstances in which it must have been obvious that there might be dissemination of a statement to the public; it was not necessary for the prosecutor to show that all, or even any, of the stations in fact broadcast the statement.

31. It should be mentioned that Mr Dwyer contended that the prosecution had to show that the operations of the Commission were in fact interfered with by the making of the statement. This doctrine he sought to derive from remarks made in contempt cases, and in particular by three of the judges in Bell v. Stewart (above). The Chief Justice, Gavan Duffy and Starke JJ. remarked of the section there under consideration:

"The section is not based on 'any exaggerated notion
of the dignity of individuals,' nor is it intended
to stifle criticism; but it is designed for the
protection of the public, and to ensure that the
due administration of the arbitration law shall not
be obstructed or interfered with, and that proper
decency and decorum shall be preserved in the Court
... It is ridiculous to suppose that the
arbitration law was, or could, in the hands of the
President, be, in any way obstructed or interfered
with by the published words".

32. Although it has to be conceded that the earlier part of the remarks quoted above appear to have been meant to be applicable to both branches of the then s.83, that is, the bringing into disrepute, as well as the contempt part, it is unlikely that the High Court intended so extensive a judicial emendation of a section as is suggested. That is, I do not accept that the judges' statement of the legislative purpose in enacting the section was intended to do more than throw light upon the construction of the language used. Bell v. Stewart does not establish that the then s.83 should be read as if it said, "calculated to bring the Court into disrepute and having the effect of obstructing or interfering with its functions". I think the High Court was concerned to exclude from the ambit of the section, on the analogy of the law of contempt, such matters as mere discourtesy and other matters which no sensible person could treat as, in truth, calculated to affect repute. Here, as Mr McGuinness said, nobody at all familiar with the workings of the Commission would have taken the defendant seriously as to either statement complained of, but in my opinion, people not so familiar might well have done so and might have been inclined to give some slight credence to the notion about Messrs Willis and Crabb the defendant put forward. I do not accept that the defendant is, as Mr McGuinness seemed to suggest, likely to be ignored by everyone in the community. There are no doubt some who would regard him, as he regards himself, as a champion of the oppressed.

33. I find the offence is proved with respect to the second charge only and the first charge will be dismissed.

34. As to penalty, nearly three years have passed since the offence in question was committed and during that time the old Commission has ceased to exist. It has, however, been replaced by a body having similar functions. I have no doubt that, were it not for the pendency of these proceedings, few people would now remember the remark which I have held constituted an offence. I do not say that the delay has been anyone's fault, but it has occurred and it makes it seem less appropriate to impose a heavy penalty. On the other hand, Mr Kirkham Q.C. has drawn attention to the fact that there has been a previous conviction of the same defendant for a somewhat similar offence, in respect of which he was sentenced to imprisonment.

35. However, a matter which Mr Dwyer says (I think rightly) should be taken into account is that the evidence shows that other remarks of an insulting kind have been directed to the Commission from time to time in the press, apparently with impunity. Mr Dwyer says, and I agree, that it goes in favour of the defendant that his statement against the Commission appears to have been the only one for many years which has been the subject of a prosecution carried to a conclusion.

36. Further, I take into account in his favour that he may well have been upset when he spoke to the media. To some extent he was challenged by the way in which the reporters mentioned to him the Commission's criticism of him and of the BLF.

37. It is necessary to record a conviction. Although the passage of time and the abolition of the Commission have given these proceedings something of an academic flavour, I would not wish to encourage the thought that bodies of this kind having such statutory protection (in particular bodies public confidence in which is essential to their proper functioning) may lawfully have attributed to them any malpractice which their detractors' imagination may fasten upon.

38. The defendant is convicted on the second charge only, that is, in matter VI13 of 1986 and is fined $250; there will be a stay of 21 days as requested by Mr Dwyer. The other charge (in VI12 of 1986) is dismissed.