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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Contempt of Court - interference with administration of justice - commission of inquiry - whether threatening to usurp functions of Court or to prejudge issues in Court proceedings - application for orders for performance and observance of rules of registered organisation of employees - appointment by State government of commission to inquire whether State law had been contravened in connection with the obtaining or dealing with the property or assets of State-registered union of employees - allegation that State-registered union of employees was a branch of organisation - common issues arising in Court proceeding and commission of inquiry - date fixed for Court hearing - earlier date for commencement of commission hearing fixed subsequently - commission intending to conduct hearings in public and to report prior to completion of court proceeding.Industrial Relations Act 1988, ss. 209 and 347
Conciliation and Arbitration Act 1904
Jurisdiction of Courts (Cross-Vesting) Act 1987, s. 11
Industrial Conciliation and Arbitration Act 1961-1989 (Q'ld.)
Commissions of Inquiry Act 1950-1989 (Qld), s. 4A(4)
HEARING
SYDNEY Counsel for the Appellant
and Cross-Respondent in Mr. K. Fleming, Q.C. and Mr. D.J.
matter No. QI 11 of 1989: CampbellInstructed by: R. Boiston of Brisbane
Counsel for the Appellant
in matter No. QI 12 of Mr. J. Griffin, Q.C. and Mr. A.K.
1989: HerbertInstructed by: K.M. O'Shea,
Crown Solicitor for the
State of QueenslandCounsel for the Respondents
in matters Nos. QI 11 and
QI 12 of 1989 other than the
FEDFA, Jack Kevin Cambourne
and Vic Fitzgerald and for
the Cross-Appellants in Mr. P.A. Keane, Q.C. and Mr. D.J.S.
matter No. QI 11 of 1989: JacksonInstructed by: Messrs. Q.D. George Hillhouse & Co.
of BrisbaneCounsel for the Respondents
the FEDFA, Jack Kevin
Cambourne, Vic Fitzgerald
and for Cyril Sharpe,
Arthur Smith, John Burton,
and Patrick Keane in
matters Nos. QI 11 and
QI 12 of 1989 and for
those Respondents as
Cross-Respondents in matter
QI 11 of 1989: Mr. J. WallaceInstructed by: Peter Channell & Associates
of Brisbane and
S.T. Duell, Forde & Harris
of Brisbane
ORDER
1. The appeals in matters Nos. QI 11 and QI 12 of 1989 be allowed.2. There be no order as to the costs of the appeals.
3. The cross-appeal in matter No. QI 11 of 1989 be dismissed.
4. There be no order as to the costs of the cross-appeal.NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
DECISION
These two appeals were heard together. The appeals are from an order made by a judge of this Court (Spender J.) on 18 October 1989 in which his Honour ordered that the appellant, Nelson Marshall Cooke ("Mr. Cooke") be restrained from conducting an inquiry in public into the subjects of certain sub-paragraphs (paras. 4(b) and 5(b)) of an Order in Council dated 17 August 1989 made by the Governor of Queensland and from reporting or making recommendations or publishing evidence or findings with respect to those subjects until the determination of proceedings pending in this Court in an application No. QI 6 of 1989 ("QI 6") or until further order. The proceedings QI 6 were proceedings commenced in the Industrial Division of the Court on 8 August 1989 by Cyril Sharpe, Arthur Smith, John Burton and Patrick Keane against the respondents to the appeal other than the Federated Engine Drivers' and Firemen's Association of Australasia ("the FEDFA"), Jack Cambourne and Vic Fitzgerald. These persons were joined in the proceedings as "respondents by cross-claim". The purpose of their joinder was apparently to enable them to bring a cross-claim against those persons who are respondents to these appeals other than "the respondents by cross-claim" themselves. Before us, they submitted to such order as this Court should see fit to make except as to costs, and were given leave to withdraw from the proceedings.2. The proceedings before his Honour were commenced by a notice of motion filed on 3 October 1989 by the respondents in matter QI 6, they being the respondents who oppose these appeals. The applicants in QI 6, although joined as respondents to the notice of motion, were not named in the notices of appeal. They were, however, joined as respondents to the cross-appeal which was instituted by the respondents opposing these appeals. They appeared by counsel before us and also submitted to such order as the Court should make. They too were given leave to withdraw.
3. The proceedings QI 6 are proceedings in which the applicants claim orders
that the respondent, Kenneth Goodhew, perform and observe
rules of the FEDFA
by:-
(a) taking all steps necessary to effect the transfer of all the4. Relief claimed against the respondents Messrs. Goodhew, Day, Barton, Roots, Glover, Smith, Hardwick, Summers and Brady is for orders that those respondents refrain, cease and/or desist from holding out, representing or implying that Messrs. Goodhew, Roots, Glover and Smith were members of the Queensland Branch of the FEDFA or that Messrs. Day and Barton were members of the Committee of Management of the Queensland Branch thereof. Other relief of a similar kind was claimed but it is unnecessary to refer to the detail of it.
property of the Queensland Branch of the FEDFA to the name
of the "Federated Engine Drivers' and Firemen's Association
of Australasia, Queensland Branch";
(b) ceasing and desisting from holding out, representing or in
any way implying that he was the Branch Secretary of the
Queensland Branch of the FEDFA; and
(c) refraining from engaging in conduct which hindered or
prevented any officer or representative of the FEDFA and, in
particular, the Assistant General Secretary, the respondent
Vic Fitzgerald, from entering certain premises in Brisbane
for the purpose of conducting the affairs of the Queensland
Branch of the FEDFA.
5. On 29 August 1989 an application was made by Messrs. Sharpe, Smith, Burton and Keane to the Industrial Court in Queensland. The application was made under the Industrial, Conciliation and Arbitration Act 1961-1989 (Q'ld). It was concerned with matters either similar to or closely connected with those raised in QI 6. On 8 September 1989 the Supreme Court of Queensland removed the Queensland application into the Supreme Court and transferred it to this Court.
6. On 19 August 1989 Mr. Cooke was appointed by the Queensland Government to inquire into a number of matters. These included the questions whether, during the periods 1 January 1986 to 27 July 1989 and 28 July to 31 July 1989, any law of the State of Queensland was contravened by any person in connection with the obtaining or dealing with the assets and property of the Queensland Branch of the FEDFA. The two questions were asked in separate paragraphs of the Order in Council. They were the questions asked in paras. 4(b) and 5(b) which are the subject of the orders made by Spender J. on 18 October 1989.
7. The background of the appointment of the inquiry commences with a meeting between Mr. Goodhew, his solicitor and an industrial officer and certain officers of the Queensland Industrial Relations Department. These officers were informed of the nature of the proceedings in QI 6 and were informed that it was alleged that there had been misappropriations of money from Union accounts.
8. Later on 9 August 1989, the then Premier of Queensland made a statement to Parliament in which he mentioned allegations of misconduct of various kinds in the trade union movement in Queensland. Amongst other things he said, "Last night on television some honourable members may have witnessed Mr. Goodhew literally being thrown out of his office by former mates from the Federal section of the Union, . . ." On 14 August 1989 the Premier issued a press statement in which plans for a commission of inquiry into alleged corruption in the Queensland trade union movement were announced. The appointment of Mr. Cooke was foreshadowed and the names of four trade unions, the FEDFA, amongst them, were mentioned.
9. On 25 August 1989 Mr. Cooke decided that his inquiry should first deal with the matters raised concerning the FEDFA, his reasons being the seriousness of the allegations against officials of that Union and the fact that investigation into some of those allegations had already been commenced by the Queensland police.
10. In the meantime directions hearings had been held in matter QI 6. On 25 August 1989, a date known in advance to the parties to that litigation, and the same day as Mr. Cooke made his decision to inquire first of all into the questions concerning the FEDFA, a judge of this Court (Pincus J.) fixed 27 November 1989 for the hearing of QI 6. His Honour set aside three weeks for the hearing.
11. Mr. Cooke conducted a preliminary hearing of his inquiry on 6 September 1989 and said that he proposed to begin public hearings on 9 October and would first inquire into the matters specified in para. 4 of his terms of reference. Paragraph 4, of course, included para. 4(b) earlier referred to which raised the question whether during the period 1 January 1986 to 27 July 1989, any law of the State of Queensland was contravened by any person in connection with the obtaining or dealing with the assets and property of the Queensland Branch of the FEDFA. Mr. Cooke said that, at the conclusion of the public hearings into the matters specified in para. 4 of his terms of reference, he intended "to write a report on the FEDFA while the Commission staff prepares the evidence for the next public session".
12. On 29 September 1989 an application was made to Mr. Cooke in which he was
requested to refrain from proceeding with his inquiry
until after QI 6 had
been determined. This application was rejected on 3 October 1989. In the
course of giving reasons for his decision
Mr. Cooke said that, on the then
estimates, the evidence to be presented to the inquiry would take four to six
weeks. If that estimate
were reliable, the public hearings would be concluded
before the hearing of the matter began in the Federal Court. Mr. Cooke said
that, if that did not prove to be the case, he would suspend the hearings
during the trial of QI 6 so as to avoid any inconvenience
to counsel or
witnesses who might otherwise be required to be in two places at once. Mr.
Cooke also said:-
"The public interest requires that I shouldThe emphasis is mine.
conduct my Inquiry as expeditiously as
possible. To vacate the commencement date,
at this stage, will involve delay. To switch
to another Union would also involve delay in
preparing material for a public session. Nor
do I think it proper that I should delay the
Inquiry to accommodate the wishes of the rival
factions whose public brawling drew attention
to the need for the Inquiry in the first place."
13. As earlier mentioned, on 3 October 1989 the respondents in matter QI 6 made the application to this Court for an order that Mr. Cooke be restrained from conducting his inquiry, insofar as it concerned the matters raised by paras. 4 and 5 of his terms of reference, until QI 6 had been determined. The matter came before Spender J. who, as earlier stated, on 18 October 1989 ordered that Mr. Cooke be restrained in the manner to which I have referred.
14. The two matters, that is to say the matter QI 6 and the matter raised by Mr. Cooke's terms of reference, do not cover precisely the same ground. The ambit of Mr. Cooke's inquiry is wider than the inquiries to which the issues in matter QI 6 give rise. Mr. Cooke is concerned to inquire whether there was a contravention by any person of any law of the State of Queensland. He is thus concerned to ascertain whether there was any contravention of the criminal law, as well as of the civil law, of that State. These are not necessarily matters which arise for consideration in matter QI 6. The Court is concerned in that matter with possible breaches of the rules of the FEDFA or of its Queensland Branch. It is concerned with questions which, although the subject of much contention, do not necessarily involve questions of dishonesty or corruption, but which involve the question whether there is an entity, separate and distinct from the federal organization, which is entitled to represent employees and, more importantly, is entitled to property claimed to be the property of the Queensland Branch of the FEDFA. Nevertheless, it is apparent from a consideration of the pleadings and some of the evidence filed in matter QI 6 that there must necessarily be common questions which will arise for decision in both proceedings. There is an overlap and it is this overlap which has concerned the respondents who oppose these appeals and which concerned Spender J. who upheld their contentions.
15. In the comprehensive submissions which were made to us, counsel tended to concentrate attention upon three authorities. These were Attorney-General v. Times Newspapers Limited (1974) AC 273, The State of Victoria v. The Australian Building Construction Employees' and Builders' Labourers Federation ("the BLF case") [1982] HCA 31; (1982) 152 CLR 25 and Hammond v. The Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188. Of these I have found the BLF case the most relevant. The Times Newspapers case was a case concerning the tension which sometimes arises between the public interest in the due administration of justice and the public interest in freedom of speech and discussion - in other words - freedom of the press. Hammond's case, like this one, involved an application to restrain the proceedings of a commission of inquiry but in that case the curial proceedings were a criminal prosecution of a likely witness before the commission. The proceedings here are civil proceedings, not criminal ones, and are proceedings which are tried by a judge sitting without a jury.
16. The Court in the B.L.F. case was constituted by Gibbs C.J. and Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ. It was concerned with the question whether a Royal Commission appointed by the Commonwealth and Victorian Governments should be restrained from proceeding until an application to this Court to deregister the B.L.F. had been determined. The matter had come before the Full Court of this Court (Bowen C.J., Evatt and Deane JJ.) ((1981) [1981] FCA 163; 37 ALR 470) which made orders that the Royal Commissioner in that case be restrained from conducting the Commission in public. The appeal to the High Court was allowed but the Court was divided, Gibbs C.J., Mason, Aickin and Wilson JJ. being of opinion that it had not been shown that the conduct of the Royal Commission in public tended to interfere with the course of justice. Stephen and Brennan JJ. were of a contrary opinion whilst Murphy J. thought that the Crown had no power to appoint a commission of inquiry into the question whether an individual had committed an offence. The letters patent in the B.L.F. case, like the Order in Council here, had raised, inter alia, the question whether trade union officials had been guilty of breaches of the criminal law.
17. With respect, the judgments of the members of the High Court provide
substantial guidance as to the approach which should be
adopted in a matter of
this kind. It seems to me that it was accepted by all judges that what Jordan
C.J. had said in Ex parte Bread
Manufacturers Limited; Re Truth and Sportsman
Limited (1937) 37 SR (NSW) 242 correctly stated the law. Jordan C.J. said (p
249):-
"It is of extreme public interest that no18. Also referred to with approval by Gibbs C.J. and Stephen J. (who reached opposite conclusions) was the decision of Sholl J. in Johns & Waygood Limited v. Utah Australia Limited (1963) VR 70. Sholl J., after referring to the judgments of Latham C.J. and Dixon J. (as he then was) in McGuinness v. Attorney-General of Victoria [1940] HCA 6; (1940) 63 CLR 73, said (p 75):-
conduct should be permitted which is likely
to prevent a litigant in a Court of justice
from having his case tried free from all
matter of prejudice. But the administration
of justice, important though it undoubtedly
is, is not the only matter in which the
public is vitally interested; and if in the
course of the ventilation of a question of
public concern matter is published which may
prejudice a party in the conduct of a law
suit, it does not follow that a contempt has
been committed. The case may be one in which
as between competing matters of public
interest the possibility of prejudice to a
litigant may be required to yield to other
and superior considerations. The discussion
of public affairs and the denunciation of
public abuses, actual or supposed, cannot be
required to be suspended merely because the
discussion or the denunciation may, as an
incidental but not intended by-product, cause
some likelihood of prejudice to a person who
happens at the time to be a litigant."
"If a common law Royal Commission is19. Members of the High Court in the B.L.F. case emphasised the public interest which there is in governments being able to appoint commissions of inquiry to inquire into matters of concern to them and of the desirability of those inquiries being held in public. In this respect Mason J. said (p 97):-
appointed to inquire into and report upon the
very same question as is the subject of an
already existing criminal prosecution, and
nothing else, presumably the appointment is
wholly invalid; the Crown has been wrongly
advised, and the whole purpose of the
appointment is to interfere with the course
of justice within the meaning (as I interpret
it) of the observation of Dixon J., in
McGuinness' Case, at p 101, which I have
already cited. Upon that view, any act of
the Commission - even of sitting and
inquiring - would be unauthorized, though the
Commission's acts would only become unlawful
if calculated to interfere with the course of
justice, as, for example, the exercise of
compulsory powers in invitum against a
witness, or the publication of the
Commission's report on the alleged offence.
Presumably the same position would obtain if
a common law Royal Commission was appointed
solely to inquire into and report upon the
very same issue as was the subject of an
already existing civil action.
But other considerations arise where a civil
action - even one already pending at the date
of the appointment of the Royal Commission -
raises different issues from those which the
Commissioners are appointed to report upon.
In such a case, the actual appointment of the
Commissioners may well be valid (as was, for
the purpose of the argument, conceded to be
the case here) and the operation of the
doctrine may be limited to the circumscribing
of the ambit of the Commissioners' powers
where interference is established or is
probable or, on the other hand, there may be
such uncertainty as to any likelihood of
interference that the Commissioners' powers
should be held still to be untrammelled."
"I have earlier mentioned in another20. In a case such as this it is the public interest to which his Honour has referred which has to be reconciled with the public interest which there is in the due administration of justice.
connexion the importance to the executive
government of the procedure by way of
commission of inquiry. It is a valuable
method of comprehensive and authoritative
fact finding on which to base wide-ranging
proposals for legislative and administrative
reform. It is a means of ascertaining
whether abuses exist and what steps might be
taken to eliminate them. By virtue of the
publicity which usually attends the
proceedings and ultimately the report when it
is made public, the commission of inquiry
serves the beneficial purpose of enlightening
the public, just as it enlightens government.
To restrain the proceedings of a royal
commission pending the final outcome of
litigation, especially civil litigation
concerning the deregistration of a trade
union which is inevitably protracted, would
be a very grave prejudice to the government
and to the public interest. The restraint,
if imposed, might need to endure for years."
21. In considering this matter it is important to understand how precisely it
is claimed that permitting the inquiry to proceed in
public may affect the due
administration of justice. Counsel for the respondents, appropriately in my
opinion, tied their flag to
one masthead. It was claimed that to allow Mr.
Cooke's inquiry to proceed in advance of the hearing of the application to
this Court,
which had been fixed to commence on 27 November last, and to leave
it open to Mr. Cooke to report on the outcome of his inquiry prior
to this
Court's judgment in the matter, would be likely to create in the public mind a
perception that this Court's function was
being usurped and that Mr. Cooke was
prejudging the issues in QI 6, or matters germane to them. This was the way in
which the matter
was approached by Stephen J. in his dissenting judgment in
the B.L.F. case. Stephen J. referred (p 74) to the conclusion of Deane
J. in
this Court that further public proceedings of the Commission in that case
would "inevitably involve some degree of prejudice
to the administration of
justice" and his further conclusions that:-
"There would be 'a degree of public22. Of these conclusions, Stephen J. said:-
pre-trial', the creation of 'undesirable
public prejudice' in relation to the
deregistration proceedings and the creation
of 'an atmosphere which will lead to pressure
being brought upon witnesses in the
proceedings in this Court and, let it be
said, that they are liable to bring, albeit
subconsciously, pressures upon the judges who
ultimately deal with the proceedings in this
Court (see Bell v. Stewart [1920] HCA 68; (1920) 28 CLR
419, at p 433)'".
"I would, with respect, adopt each of theseIt is to be observed that Stephen J.'s agreement with Deane J. related to matters additional to that relied upon by counsel here, namely, pressure upon witnesses and judges.
findings and conclusions. They seem to me to
be clearly correct."
23. In his dissenting judgment in the B.L.F. case Brennan J. said (p 167):-
". . . usurpation of the function of a court isLater his Honour said (p 177):-
not to be understood merely as a reference to
irregular tribunals pretending to the
exercise of judicial power. What is
proscribed is the public prejudging of a case
or of the issues in it, whether or not the
public discussion of the case or the issues
is likely to affect the judge before whom the
case will come for determination. I would
adopt with respect that passage in Lord
Reid's speech in the Times Newspapers Case
where he saw that, if any other view were
taken, 'unpopular people and unpopular causes
will fare very badly'; (1974) AC at p 300."
"What was material was, first, whether the24. His Honour went on to conclude (p 177) that these matters had been considered by this Court in the exercise of its discretion and detected no error of principle in that exercise.
continuation of public sittings would as a
matter of practical reality tend to prejudice
the due administration of justice, particularly
by tending to the public prejudgment of the
issue as to the cancellation of registration
of the B.L.F. Then it was material to decide
whether the public interest in continuation of
the public sittings of the Commissioner outweighed the
public interest in the due administration of justice."
25. This approach to the problem is consistent with the way the House of
Lords approached it in Attorney-General v. Times Newspapers
Limited. Thus Lord
Diplock said ((1974) AC at p 310):-
". . . parties to litigation should be able toWhat his Lordship said was, of course, said in the context of a case about the press and "trial by the media", not about the proceedings of a commission of inquiry.
rely upon there being no usurpation by any
other person of the function of that court to
decide their dispute according to law. If to
have recourse to civil litigation were to
expose a litigant to the risk of public
obloquy or to public and prejudicial
discussion of the facts or merits of the case
before they have been determined by the
court, potential suitors would be inhibited
from availing themselves of courts of law for
the purpose for which they are established."
26. Aickin J., contrary to the view of a different majority, had concluded
that the Full Court of this Court had no jurisdiction
to entertain the appeal
from the primary Judge (Northrop J.). But his Honour said (pp 118-9):-
"Although I have formed the view that theThe emphasis is mine.
Federal Court had no such jurisdiction, it is
desirable that I should indicate my view on
the substance of this point. On that basis
it is my opinion that the appeals should be
allowed. I am satisfied that there was no
basis for apprehending that at this stage
there would be a contempt of the Federal
Court. The proceedings in the Federal Court
under Pt VIII (of the Conciliation and
Arbitration Act 1904) were at a very early
stage and there was no reason for supposing
that the progress of the proceedings to the
point when the trial would be ready to begin
would be swift. The particulars of the
material upon which the Minister and the
Commonwealth rely in their application for
deregistration of the B.L.F. comprise not
less than 488 paragraphs. The statement of
claim itself is long and complex. During the
course of the hearing of these matters in
this Court no one ventured to estimate the
length of time which would elapse before that
matter would come on for hearing. Each
Commission requires the Royal Commissioner to
make his inquiry as expeditiously as possible
and to report not later than 28 February 1982
or such later date as may be appointed. It
is no doubt reasonable to assume that the
time for reporting may be extended to a date
later than 28 February 1982 in view of the
nature and extent of the area of inquiry to
be made. It is at the present stage
impossible for this Court to predict either
how long the Royal Commissioner will continue
to sit and hear evidence and how long it will
take for the parties to the deregistration
proceedings to be ready for trial, or to predict
which of those two events will first occur.
In these circumstances the risk of contempt
of the Federal Court is in my opinion both
slight and remote in time and by no means
sufficient to warrant any restriction upon
the conduct of the Royal Commissioner in
accordance with his two Commissions. I have
had the advantage of reading the reasons for
judgment of my brother Wilson and I agree
with his observations on this point. I do not
therefore need to elaborate on this aspect of
the case.
What the position would be if the Royal
Commission were still proceeding at the time
when the hearing of the application for
deregistration was imminent or had commenced
cannot be foreseen and no point would be
served by expressing an opinion about what
the position might then be."
27. The time frame in the present case is in a very different category. At the time Mr. Cooke decided to proceed with his inquiry, the hearing of the proceedings in this Court was imminent. He reached his conclusion on 3 October 1989. On 25 August 1989, the hearing of matter No. QI 6 had been fixed to commence on 27 November 1989 which was about eight weeks away. The hearing was expected to conclude three weeks later. In those circumstances it must have seemed likely that the witnesses to be called both before Mr. Cooke and the Court would be required to give their evidence in a period of less than three months and that the evidence before Mr. Cooke, if it were to attract publicity, would be well publicised before the beginning of its hearing. More importantly, it seems from what Mr. Cooke said on 3 October 1989, coupled with his statement on 6 September 1989, that he was anxious, if he could, to finish the FEDFA aspect of the inquiry and to report to the government about it prior to the commencement of the hearing in this Court. Having read what he said on that day, I do not perceive anything in his remarks which justify such haste. That is not a reason in itself for deciding the matter but it has a background relevance when one is endeavouring to balance the two public interests which are in question.
28. In this regard I should say that I am disturbed by so much of the paragraph of Mr. Cooke's considered reasons delivered on 3 October 1989 as I have earlier emphasised. He spoke of it not being proper "to accommodate the wishes of the rival factions whose public brawling drew attention to the need for the inquiry in the first place". In the context of the application with which Mr. Cooke was dealing, a detached observer could reasonably think that Mr. Cooke was referring to the public dispute between rival factions within the FEDFA which was the subject of the proceedings in matter QI 6. It is possible, however, that he was referring to the ejection of Mr. Goodhew from his office which was mentioned by the Premier in his statement to Parliament on 9 August 1989. If that be so, I think that it is a pity that Mr. Cooke did not make this clear.
29. Be that as it may, it seems to me to be inescapable that Mr. Cooke had, before commencing the hearing of any evidence, disparaged all parties to the proceedings before this Court by attributing to them participation in a public brawl. This was the language of prejudgment. Mr. Cooke's use of it did not augur well for the necessary open-mindedness and objectivity which Mr. Cooke was required to bring to his consideration of the evidence and his deliberations.
30. The case which is put on behalf of the respondents to these appeals is put most strongly if it is approached with what was said by the dissenting judges in the B.L.F. case and by Aickin J. in mind. That is the way that the matter was put to us by counsel and it is clear that there is a substantial body of judicial opinion upon which counsel was entitled to rely.
31. The great problem for the argument, however, is that that approach was rejected by the majority in the B.L.F. case, Gibbs C.J. and Mason and Wilson JJ. Counsel sought to distinguish what their Honours had said upon the basis of the distinctions which there plainly are between the facts of this case and the facts of the B.L.F. case. But it seems to me that a proper reading of the judgements of the majority shows that there were fundamental differences between the members of the High Court about the proper approach to be adopted. The majority took a robust view of matters giving full weight to the public interest which there is in governments having an unfettered power to appoint commissions of inquiry to inform them on matters of concern to them and to require those commissions to sit in public. Only if it were clear that the proceedings of such a commission were already seriously affecting the due administration of justice, or were plainly likely to have that effect, should the commission be restrained. That is because it would only be in those circumstances that one could find actual or threatened contempt.
32. I have cited passages from the judgments of the minority because they were relied upon by counsel for the respondents in support of their argument. It is not possible to do the majority judgments justice without citing extensive passages from them. Even then one needs to read them as a whole. It is enough to say that the contemporary prosecution of curial proceedings and the holding of an inquiry, which would cover some of the matters which would concern the Court, did not suggest to their Honours that ordinary members of the public would perceive that the Court's function was being usurped or that the issues in the curial proceedings were being prejudged. It is clear that the position may be otherwise if there is untoward discussion of issues yet to be determined in curial proceedings in the press, although even that will not lightly be restrained. The position may be different again in cases which are to be tried by juries, especially if it is a breach of the criminal law which is in question. Hammond's case illustrates this point.
33. In the course of his judgment, Mason J. referred to what Jordan C.J. had
said in the Bread Manufacturers case and to the importance
of the public
having access to information which it has a legitimate interest in knowing.
His Honour continued (p 98):-
"Where the alleged contempt consists of34. In my opinion this is a stronger case than the B.L.F. case because of the fact that the hearing of QI 6 was imminent and that the evidence to be led both before the Commission and before the Court was likely to be in comparatively short compass - four to six weeks in the former case and three weeks in the latter. Furthermore, both the commission of inquiry and the Court were to conduct their proceedings in the latter three months of this year.
newspaper discussion or report it is this
public interest that is weighed in the
balance against the public interest in
maintaining the integrity of the
administration of justice by taking such
steps as may be necessary to protect it from
interference. In weighing the competing
factors that arise in that situation and in
the present situation, weight must be given
to freedom of speech, discussion and
information. Without information there can
be no meaningful discussion. In a given case
it is not easy to point to specific and
tangible benefits that flow from preserving
that freedom. But general experience of
human affairs enables us to say that the
freedom should not be qualified except in the
face of a competing public interest of equal
or greater importance. This induces me to
conclude that in a case such as the present
the restraint should not be imposed unless it
is established that it is necessary to avoid
a substantial risk of serious injustice. It
is not enough in my view to show that there
is some apprehension of injustice arising
from some tendency to prejudice."
35. I have given serious thought to the question whether this is not enough to distinguish the two cases and to warrant the conclusion for which the respondents contend. There is much to be said for the view that Aickin J.'s decision may well have been different if he had had to consider a time frame such as this. If that had been the case, the opinion in the High Court would have been evenly balanced, Murphy J. having approached the matter in a different way.
36. The difficulty I have with this approach, however, arises from the fact that, notwithstanding my criticism of what Mr. Cooke said in his reasons for decision delivered on 3 October 1989, there is insufficient evidence to justify the view that the proceedings before him are likely to constitute a contempt of Court. One should assume that the proceedings will be conducted responsibly and with a proper consciousness of the need to ensure that the due administration of justice is not prejudiced. If this is not done, there may be actual contempt.
37. It was suggested in the course of argument that the appeals were against
the exercise of a discretion so that the learned primary
Judge's decision
should not be disturbed unless a manifest error were demonstrated. It is true
that Brennan J. approached the B.L.F.
case in this way. On the other hand,
Gibbs C.J. said (p 60):-
"The conclusion reached by the Federal Court38. In the result I have reached the conclusion that the appeals should be allowed. I should perhaps add that to me the more difficult question has been whether to uphold the order restraining the hearing of the matter in public. In my opinion, the case for retaining the restraint against reporting is not nearly so strong. There was no certainty that Mr. Cooke would report before the determination of QI 6 and, if it transpired that he was likely to do so, it would have been time enough then to make an application to restrain him from doing so. No doubt the manner in which the inquiry had been conducted would have some relevance to the question which would then need to be decided.
was that the adverse effect of the continued
public proceedings of the royal commissions
upon the judicial proceedings in that court
outweighed the public interest involved in
having the proceedings of the Commissions
continued in public. If their Honours
considered that they had a discretion to
weigh one consideration against another, and
to make a discretionary judgment as to
whether a contempt had been committed or was
likely to be committed, they were mistaken.
The balancing of interests which is mentioned
in Attorney-General v. Times Newspapers Ltd.
is done by the law in formulating the
principle to be applied, and not by the court
in deciding a particular case. The resulting
principle requires that the court be
satisfied that there is a real risk that the
material alleged to be a contempt will
interfere with the administration of justice
in pending proceedings before it can hold
that a contempt has been committed or is
threatened. The discretion of the court lies
in dealing with a contempt, not in deciding
whether a contempt has been committed. The
jurisdiction to punish as a contempt
something otherwise lawful is exceptional and
drastic and must be exercised with great
care. The court must, if possible, be even
more cautious in granting an injunction to
restrain an apprehended contempt. In my
opinion it has not been shown that there is a
real risk that the conduct of the inquiry by
Mr. Winneke in public would interfere in any
way with the administration of justice in the
proceedings in the Federal Court."
39. It remains to consider the question of costs. I agree with Gray J. that the Court had jurisdiction to order costs at first instance and has jurisdiction to provide for the costs of the appeals. I think that this application was prompted by the manner in which Mr. Cooke approached his task. It is not uncommon for governments or commissions of inquiry to be concerned with matters which touch upon pending proceedings in courts. Usually there is a degree of accommodation reached by governments and commissions of inquiry on the one hand and courts on the other. Common sense and courtesy are the usual touchstones, not confrontation or provocation. I can well understand the apprehension which some of the parties to QI 6 must have felt, not only as a result of what Mr. Cooke said, but as a result of the way in which he approached his decisions. I think a little more tact might have avoided that apprehension and the institution of these proceedings. In those circumstances I am of opinion that it is inappropriate to order the respondents to pay either the costs at first instance or the costs of these appeals. His Honour, for jurisdictional reasons, made no order as to the costs of the proceedings before him. That order should not be disturbed. I would make no order as to the costs of the appeals either.
40. Relevant to the question of what orders should be made as to costs is the cross-appeal brought by the respondents other than the FEDFA and Messrs. Cambourne and Fitzgerald. The cross-appeal proceeded on the assumption that the orders made by Spender J. would not be disturbed. On that assumption, the cross-appeal sought an order that Mr. Cooke pay the costs of the relevant respondents of and incidental to the application before Spender J. and the cross-appeal. In the light of my view that the orders ought not to have been made, the matter raised by the cross-appeal is not a matter which it is relevant to consider. In those circumstances I am of opinion that it should be dismissed and that no order should be made in respect of the costs of it.
41. Since writing what I have, I have been informed that on 18 December 1989, Spender J., on application made to him in that behalf, discharged the orders which he made on 18 October 1989 which are the subject of the appeals. Ordinarily, where an appeal against the making of an order is upheld, the Court makes a consequential order setting aside the order appealed from. In this case no purpose will be served by such an order. In the circumstances the only orders I would make are that the appeals be allowed and that there be no order as to the costs of them.
I have had the advantage of reading in draft form the reasons for judgment of Gray J. I agree with much that his Honour has written, especially in relation to the first order made by Spender J. However, I respectfully part company with Gray J in relation to the second order; that is, upon the question whether the making of a report by Mr Cooke before the termination of the proceeding pending in this Court would constitute a contempt of court.
2. There is no doubt that, under certain circumstances, the institution of a commission of inquiry, or some aspect of its conduct, may give rise to a contempt of court. That much was made clear as long ago as Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139, see per Griffith CJ at p 161. It was re-affirmed in McGuinness v Attorney-General (Victoria) [1940] HCA 6; (1940) 63 CLR 73 and, more recently, in Victoria v Australian Building Construction Employees and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 ("the BLF case"). However, contempt of court by a commission of inquiry is likely to be an infrequent occurrence. In the BLF case, at p 95, Mason J observed that there was no reported case in which the proceedings of a commission had been held to be a contempt. Today, that observation would have to be qualified by a reference to Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188, in which a Royal Commissioner was restrained from examining the plaintiff, pending his trial on a charge of conspiracy, with respect to matters touching and concerning that charge.
3. One reason why, notwithstanding Hammond, it remains true that strong facts
are required to justify a finding of contempt against
a commissioner is that
there is a substantial public interest in the unimpeded progress of a
commission of inquiry, including the
publicity which such an inquiry often
attracts. The point was made by Mason J in the BLF case at p 99:
"Here, however, the ultimate worth of the Royal4. It is relevant to note that, in this passage, Mason J was drawing a distinction between the test to be applied in relation to a commission of inquiry -- "substantial risk of serious injustice" -- and that which he thought to be appropriate in cases of publication by the media of material relating to the issues in a pending criminal trial: "whether the publication has a tendency to interfere with the administration of justice". No such distinction was made, at least in those express terms, by the other members of the Court, but a majority of the Justices accepted the test adopted by Lord Reid in Attorney-General v Times Newspapers Ltd (1974) AC 273 ("the Sunday Times case") at 299: that there be "a real risk" of injustice.
Commissions is bound up with the publicity
that the proceedings attract and the public
has a substantial and legitimate interest in
knowing what is happening before the
Commissioner. Consequently the public
interest in freedom of discussion has an
important value which is quite independent of
the deregistration case. That public interest
is not as readily subordinated to the need to
maintain the administration of justice free
from interference as it is in the trial by
newspaper situation. Accordingly the test to
be applied here in determining whether there
is an apprehended contempt is one which lays
emphasis on the need to establish a
substantial risk of serious injustice as an
essential qualification of obtaining relief."
5. The procedure proposed by Mr Cooke, in the present case, was unfortunate. Mr Cooke indicated that he intended to commence hearing evidence in relation to paras 4 and 5 of the Order in Council -- the subjects which overlapped the matters raised in this Court -- on 9 October 1989. He said that he contemplated a hearing occupying about six weeks and he foreshadowed an interim report on these matters. Depending on the time necessary for its preparation, it was quite possible that the interim report would be delivered to the Minister at about the very time when the hearing before Pincus J was getting under way. I do not suggest that Mr Cooke intended to embarrass the Court, but the course which he announced had the potential to cause confusion to the parties and to the public and embarrassment to the Court.
6. However, confusion and embarrassment are one thing; a "real" or "substantial" risk of injustice is another. To grant an injunction restraining the delivery by Mr Cooke of his report into paras. 4(b) and 5(b) is to interfere with the capacity of the Executive to obtain information on matters of public concern about which, it is conceded, it was entitled to make inquiry. To restrain the publication of that report is to deprive members of the public of information about matters of public concern, which have been investigated at public expense. Moreover, this being an inquiry concerning allegations of individual misconduct, to suppress the report may be to postpone the public vindication of one or more individuals. In my opinion, orders such as these should be made only after careful and sceptical analysis, in the course of which the apprehended "risk of injustice" is identified and quantified.
7. My difficulty about the second order of Spender J is that I am unable to identify a relevant risk of injustice. As Gray J has pointed out, at the time of the hearing before Spender J there was no question of Mr Cooke's inquiry directly interfering with the trial of matter Q I 6 of 1989. Mr Cooke had undertaken not to take evidence in respect of paras. 4 and 5 of the Order in Council whilst that trial was proceeding. Consequently, Mr Cooke's timetable did not create the risk of an injustice arising in that proceeding because of somebody being detained at, or distracted by, a simultaneous sitting of the commission of inquiry.
8. The only basis upon which it could be said that the presentation of Mr Cooke's report might constitute a contempt of court was that it might involve a pre-judgment of the issues falling for determination in matter Q I 6 of 1989. In regard to that matter, I should say that I agree with Gray J, firstly, that the factual matters to be investigated by Mr Cooke substantially overlapped those falling for determination in this Court and, secondly, that the only realistic assumption which could have been made was that the proceedings of the inquiry would attract publicity. Accordingly, it had to be assumed that some members of the public would learn of the nature of the allegations under investigation and some of the evidence given at the inquiry, particularly any more sensational elements. I think that it was also only realistic to assume that, absent an appropriate restraining order of this Court, Mr Cooke's report might have been released to the media very shortly after its delivery to the Government.
9. But, even making those assumptions, where was the risk of injustice? The
proceeding pending in this Court was a civil proceeding
to be determined by a
judge sitting alone. The authorities abound with statements to the effect that
it must be assumed that no judge
would be influenced by what he had read of a
case. See, for example, the words of Lord Salmon in Attorney-General v British
Broadcasting
Corporation (1981) AC 303 at pp 342-343:
"I am and have always been satisfied that noSee also other citations in Borrie and Lowe, "Law of Contempt", second edition at pp 112-114.
judge would be influenced in his judgment by
what may be said by the media. If he were, he
would not be fit to be a judge."
10. These statements have usually been made in relation to media comment on a case. But in the BLF case the same attitude was taken in relation to publicity surrounding the proceedings of a commission of inquiry: see per Gibbs CJ at p 58, per Mason J at p 102 and per Wilson J at p 136.
11. It seems to me that, on this aspect of the matter, all that can be said
about the publication of Mr Cooke's report is that, depending
upon the timing
of that publication and the contents of the report, it may add to the burden
of deciding matter Q I 6 of 1989. As
Stephen J (dissenting) said in the BLF
case, at p 76:
"Judges are necessarily engaged daily in12. However, the creation of judicial discomfort is not the same thing as the creation of a risk of injustice. Mason J made this point in the BLF case at p 102 when he said:
hearing and later banishing from their minds
evidence which is of a prejudicial nature and
which proves to be inadmissible. They should,
both by experience and by training, be better
able to do so than most people. But even
assuming that in the present case . . . they
prove to be entirely successful in doing so,
the need consciously to do so will at least
add substantially to the difficulty of their
task in properly determining the
deregistration proceedings."
"It is only natural that judges should prefer13. There was, in the present case, no suggestion that the presentation and publication of Mr Cooke's report would be likely to affect the conduct of any of the parties, or any of the witnesses, in matter Q I 6 of 1989.
to decide cases in an atmosphere which is
clinically free from prejudice. No one enjoys
making a decision to which government or
public is hostile or antagonistic. But the
natural desire to avoid embarrassment of this
kind is not enough to justify a restraint
which deprives the public of knowledge of
important matters which it has a legitimate
interest in knowing."
14. The suggestion was made in argument that the threatened presentation and publication of a report of a commission of inquiry at about the same time as a court hearing must constitute a contempt of court because of the possibility that the report would contain findings inconsistent with those subsequently made by the court. In the submission of counsel, the public would be made aware that the Court had erred, thus diminishing its reputation. However, there are several objections to that argument. In the first place, if it were valid, the courts would have to brand as a contempt the presentation and publication, at any time, of a report suggesting error by a court. This is a position too draconian to contemplate. Secondly, why should it be assumed that members of the public would believe that the Court had erred? It is at least as likely that they would suspect the correctness of the inquiry findings. Some members of the public would appreciate that different rules of evidence and standards of proof commonly apply to the two different types of proceeding. Finally, although it is no doubt correct that a public perception of sloppy fact-finding must diminish the reputation of a court, members of the public surely appreciate that error is always possible and that competent and conscientious people will sometimes differ, upon matters of both fact and law. That is why the legal system provides for appeals. To me it seems fanciful to say that the possibility of inconsistent findings is such a threat to the reputation of this Court as to give rise to a "real" or "substantial" risk of injustice.
15. In Borrie and Lowe the comment is made at p 63 that, before the Sunday Times case, "the orthodox view had been that to constitute an actionable contempt the particular publication should be thought to have created a real risk of prejudice to the administration of justice in the particular case. The House of Lords in the Sunday Times case, however, established a broader test. They held that a publication relating to particular proceedings can constitute a contempt not only because of the risks of prejudice to the case in hand but because of the risks of prejudice to the administration of justice as a whole". (original emphasis)
16. The approach taken in the Sunday Times case is illustrated by the
following extracts from speeches of their Lordships:
"I think that anything in the nature of17. As is apparent from these extracts, the members of the House of Lords were very much concerned with the possibility of trial by media. The case before them was one in which the respondent had set out, by a series of articles canvassing the merits of particular claims, deliberately to influence a litigant to settle those claims. It was a very different case from that which arises in connection with publicity surrounding a report by a commission of inquiry. Perhaps that is why, in the BLF case, the majority of the High Court refused to adopt the Sunday Times' approach, although most members of the Court did adopt Lord Reid's "real risk of injustice" test. Whether or not the High Court will be prepared to adopt, for Australia, the Sunday Times' approach to media publications, there is no justification for treating it as applicable to publicity surrounding the proceedings or report of a commission of inquiry. In connection with such a matter, in my view, the courts should continue to insist upon proof that publicity regarding the proceedings, or the report, is likely to create a real risk of injustice in the particular case. That has not been demonstrated in the present case. I would allow the appeal.
prejudgment of a case or of specific issues in
it is objectionable, not only because of its
possible effect on that particular case but
also because of its side effects which may be
far reaching. Responsible 'mass media' will
do their best to be fair, but there will also
be ill-informed, slapdash or prejudiced
attempts to influence the public. If people
are led to think that it is easy to find the
truth, disrespect for the processes of the law
could follow, and, if mass media are allowed
to judge, unpopular people and unpopular
causes will fare very badly. Most cases of
prejudging of issues fall within the existing
authorities on contempt. I do not think that
the freedom of the press would suffer, and I
think that the law would be clearer and easier
to apply in practice if it is made a general
rule that it is not permissible to prejudge
issues in pending cases."
(per Lord Reid at p 300)
"But, even apart from this, is it not contrary
to the fitness of things that there should be
unrestricted expressions of opinion as to
whether the merits lie with one party to
litigation rather than with another? Even if
some expressions of opinion were the result of
honestly attempted sound reasoning how easy it
would be for later statements by others to
amount simply to advocacy inspired by partisan
motives for the cause of one party, and how
difficult it would be then to stem the tide of
public clamour for the victory of one side or
the other. Though a judge would hope to be
resistant to any pre-trial soundings of the
trumpet it must surely be contrary to public
policy to allow them full blast. Furthermore,
not only is it from the public point of view
unseemly that in respect of a cause awaiting
the determination of a court there should be
public advocacy in favour of one particular
side or some particular points of view but
also the courts, I think, owe it to the
parties to protect them either from the
prejudices of prejudgment or from the
necessity of having themselves to participate
in the flurries of pre-trial publicity. In
this connection I agree with Lord Denning M.R.
when he said, at p 460: 'We must not allow
'trial by newspaper' or 'trial by television'
or trial by any medium other than the courts
of law.'"
(per Lord Morris of Borth-y-Gest at pp 303-304)
"Contempt of court, except the rare offence of
scandalising the court after judgment, is
committed before the trial is concluded.
Whether in the result the publication will
have had any influence upon jurors or
witnesses is not known when the proceedings
for committal for contempt of court are heard.
This mischief against which the summary remedy
for contempt of court is directed is not
merely that justice will not be done but that
it will not be manifestly seen to be done.
Contempt of court is punishable because it
undermines the confidence not only of the
parties to the particular litigation but also
of the public as potential suitors, in the due
administration of justice by the established
courts of law.
My Lords, to hold a party up to public obloquy
for exercising his constitutional right to
have recourse to a court of law for the
ascertainment and enforcement of his legal
rights and obligations is calculated to
prejudice the first requirement for the due
administration of justice: the unhindered
access of all citizens to the established
courts of law. Similarly, 'trial by
newspaper,' i.e., public discussion or comment
on the merits of a dispute which has been
submitted to a court of law or on the alleged
facts of the dispute before they have been
found by the court upon the evidence adduced
before it, is calculated to prejudice the
third requirement: that parties to litigation
should be able to rely upon there being no
usurpation by any other person of the function
of that court to decide their dispute
according to law. If to have recourse to
civil litigation were to expose a litigant to
the risk of public obloquy or to public and
prejudicial discussion of the facts or merits
of the case before they have been determined
by the court, potential suitors would be
inhibited from availing themselves of courts of
law for the purpose for which they are established."
(per Lord Diplock at pp 309-310)
"It is easy enough to see that any publication
which prejudges an issue in pending
proceedings ought to be forbidden if there is
any real risk that it may influence the
tribunal -- whether judge, magistrates or jury,
or any of those who may be called upon to give
evidence when the case comes to be heard. But
why, it may be said, should such a publication
be prohibited when there is no such risk? The
reason is that one cannot deal with one
particular publication in isolation. A
publication prejudging an issue in pending
litigation which is itself innocuous enough
may provoke replies which are far from
innocuous but which, as they are replies, it
would seem unfair to restrain. So gradually
the public would become habituated to, look
forward to, and resent the absence of,
preliminary discussions in the 'media' of any
case which aroused widespread interest. An
absolute rule -- though it may seem to be
unreasonable if one looks only to the
particular case -- is necessary in order to
prevent a gradual slide towards trial by
newspaper or television."
(per Lord Cross of Chelsea at pp 322-323)
18. Since I wrote the above Spender J has vacated the orders under appeal. Consequently, it is inappropriate to make the orders which I otherwise would have supported, that this Court set aside both of the injunctions granted by Spender J. Since that time I have also had the advantage of reading in draft form the reasons for judgment of Sheppard J. I respectfully agree with the views expressed by his Honour in regard to costs and the orders which should be made.
These two appeals and one cross appeal from a judgment of a single judge of the Federal Court of Australia were heard together. The appeals concern the difficult question whether the Court should restrain in any way the conduct of a commission of inquiry, on the ground that the manner in which the commission conducts itself may amount to a contempt of court.
2. On 7th August 1989, there was filed in the Queensland District Registry of the Federal Court of Australia an application, which became No. QI 6 of 1989. The applicants were Cyril Sharpe, Arthur Smith, John Burton and Patrick Keane. The respondents were Kenneth Goodhew, Barry Day, Ian Barton, Ralph Roots, Barry Glover, Graham Smith, Stan Hardwick, Les Summers, P.K. Brady and Hughcombe Pty. Ltd. By subsequent order, Graham Smith's name was deleted, and Michael Slade was added as a respondent. The application appears to invoke the jurisdiction of the Court given by s.209 of the Industrial Relations Act 1988 ("the Act"), to order the performance or observance of the rules of an organisation registered under the Act, by a person who is under an obligation to perform and observe those rules.
3. In this case, the organisation concerned is the Federated Engine Drivers' and Firemen's Association of Australasia ("the FEDFA").
4. The orders sought in matter no. QI 6 of 1989 include an order that Mr. Goodhew take all steps necessary to effect the transfer of all of the property of the Queensland branch of the FEDFA to the name of that branch. There is also an order sought that Hughcombe Pty. Ltd. hold all property, whether real or personal, in its possession, care or control in trust for the FEDFA Queensland branch.
5. Interim orders were also sought in the application. They were an order permitting entry to certain premises and the removal of documents therefrom, and an order restraining the disposal of or dealing with or removal from the jurisdiction of assets of the respondents named in the application.
6. The statement of claim filed with the application involved allegations that Mr. Goodhew had acted in breach of the rules of the FEDFA by failing to bank all income of the FEDFA and its Queensland branch in the appropriate account, diversion of income and funds of the FEDFA and its Queensland branch into accounts not authorised by either the FEDFA or its Queensland branch, creating false reports of the finances of the FEDFA and its Queensland branch for the use of auditors and certifying false or misleading reports on the finances of the FEDFA and its Queensland branch for submission to the Industrial Registrar.
7. The FEDFA and two of its officials, Jack Kevin Cambourne and Vic Fitzgerald, have been joined to the proceeding in matter no. QI 6 of 1989, and are cross-claimants. Their statement of claim was filed on 13th September 1989. It contains allegations that the FEDFA was first registered as an organization under the Conciliation and Arbitration Act 1904 in 1908, and that in 1917, its Queensland branch sought registration as a union of employees pursuant to legislation of the State of Queensland. It is alleged that the resultant registration is that of the Queensland branch of the FEDFA, and that any funds held by it or any other person holding moneys on behalf of it are funds of the FEDFA, some of which are required to be held by the Queensland branch of the FEDFA. Mr. Goodhew is alleged to have acted in breach of the rules of the FEDFA, by not banking all income and funds in the name of the FEDFA, Queensland branch. The cross-claimants seek a declaration that the entity registered under Queensland law is a branch of the FEDFA and orders relating to property similar to those sought by the applicants. They also seek, among orders sought in the alternative, an order that a body called the Federated Engine Driver's and Firemen's Union of Employees Queensland be joined as a respondent. That is the current name in which registration is held under the Industrial Conciliation and Arbitration Act 1961-1989 (Qld.).
8. The respondents in matter no. QI 6 of 1989 have filed defences. It is apparent from those defences that there are substantial issues as to matters such as the ownership of property, as between the FEDFA and the state registered entity.
9. On 8th August 1989, Ryan J. granted interim orders in matter no. QI 6 of 1989. The effect of these orders was to allow the applicants and their solicitors to enter the home of Mr. Goodhew and the union premises in Brisbane, and to take into their custody records relating to property transactions of the state registered entity, to restrain Mr. Goodhew from removing from his home documents relating to the matters in question, to restrain Mr. Goodhew and Hughcombe Pty. Ltd. from disposing of or dealing with any of their assets and to permit Mr. Fitzgerald to enter the union premises and conduct the affairs of the FEDFA. On the day on which the orders were made, attendance was made on the union premises in Brisbane for the purpose of executing that part of it which related to documents on those premises. This attracted a certain amount of publicity. On the same day, some of the respondents in matter no. QI 6 of 1989 sought an appointment with the Queensland Minister for Industrial Relations to discuss the effect of the court order and the subsequent events.
10. On 9th August 1989, Mr Goodhew, with his solicitor and an industrial officer went to meet the minister. They were told that the minister was unavailable, and instead met with the head of the Industrial Relations Department and two other officials of that department. They gave to these officials information as to matter no. QI 6 of 1989, and made allegations that there had been misappropriation of money from union accounts, and that secret accounts had been held by the union for a number of years.
11. Within a few hours of this meeting, at 2.41 p.m. on the same day, the then Premier of Queensland, Mr. M.J. Ahern, made a ministerial statement in Parliament. The statement concerned allegations of corruption, fraud, ballot-rigging and stealing or misuse of members' funds in the trade union movement. In the course of his statement, the Premier did not distinguish between those trade unions which are registered organisations under the Act, and those which are registered as industrial unions of employees under Queensland legislation, except to refer to "the Federated Engine Drivers' and Firemen's Association of Australasia, Queensland branch, which became the Federated Engine Drivers' and Firemen's Union of Employees, Queensland, on 28th July." This was a reference to a change of name of the state registered entity, which had occurred on that date. The statement contained allegations of "corruption and misuse of funds" in relation to that union. The Premier stated that he had passed on to the Minister for Police "copies of letters that have come into my possession with regard to the Federated Engine Drivers' and Firemen's Association."
12. On 10th August 1989, upon certain undertakings being given by the respondents in matter no. QI 6 of 1989, Ryan J. discharged some of the orders which he had made on 8th August, and modified others. Among the orders was one returning possession of the union premises to Hughcombe Pty. Ltd.
13. On 14th August 1989, the then Premier of Queensland issued a media release, announcing plans for a full commission of inquiry into alleged corruption and malpractice in the Queensland trade union movement. It was announced that the inquiry would be headed by (Nelson) Marshall Cooke Q.C., and that four trade unions had been named specifically in the terms of reference.
14. On 19th August 1989, the Queensland Government Gazette carried an order
in council, appointing Nelson Marshall Cooke Q.C. to
inquire into certain
specified matters. The relevant matters for this purpose are as follows:
"4. Whether during the period 1 January 198615. Various directions hearings have taken place before Pincus J. in relation to matter no. QI 6 of 1989. Pincus J. expressed disquiet about the concurrent conduct of that proceeding and the inquiry by Mr. Cooke. At one stage, his Honour suggested that an appropriate course to take might be to adjourn the trial of the proceeding until after the inquiry was completed.
to 27 July 1989 any law of the State was
contravened by any person in connection with -
(a) the elections for elected positions in:
or
(b) the obtaining or dealing with the
assets and property of,
the Federated Engine Drivers' and Firemens'
Association of Australasia Queensland Branch,
Union of employees.
5. Whether during the period 28 July 1989 to
31 July 1989 any law of the State was
contravened by any person in connection with -
(a) the elections for elected positions in:
or
(b) the obtaining or dealing with the
assets and property of,
the Federated Engine Drivers' and Firemen's
Union of Employees, Queensland.
6. Whether during the period 1 January 1982
to 31 July 1989 any law of the State was
contravened by any person in connection with -
(a) the elections for elected positions in:
or
(b) the obtaining or dealing with the
assets and property of,
any other industrial union of employees, other
than those aforesaid, if in the opinion of the
said NELSON MARSHALL COOKE, it is necessary or
desirable in the public interest to inquire
into and report upon the same.
7. Whether the existing laws of the State,
either alone or in conjunction with any other
applicable law, and the procedures provided
thereunder are adequate to prevent fraud or
other misconduct in the conduct of affairs by -
(a) any industrial union of employees:
or
(b) any other association of employees
constituted for industrial purposes
(including any trade union).
and, if not, what amendments to existing
legislation or procedure or new legislation or
procedures are necessary or desirable to
achieve that purpose."
16. On 25th August 1989, an early morning conference took place between Mr.
Cooke, the counsel assisting his commission and the solicitor
assisting the
commission. That solicitor has sworn in an affidavit as follows:
"It was decided that the Inquiry should direct17. On 25th August 1989, Pincus J. fixed 27th November 1989 as the date of commencement of the trial in matter no. QI 6 of 1989. The Court was informed that his Honour had set aside three weeks for that trial.
its attention first to the F.E.D.F.A. and
F.E.D.F.U. The reasons for this decision
were, primarily:-
(i) the seriousness of the allegations
against the officials of the union;
(ii) the fact that investigation into
some of the allegations had already
been commenced by the Fraud Squad of
the Queensland Police and that this
would facilitate the speedy
commencement of hearings;
(iii) the fact that the allegations had
already been well publicized.
It was agreed that once public hearings
commenced into the F.E.D.F.U. and F.E.D.F.A.,
some staff would be freed to commence preparations
of public hearings into other unions."
18. On 29th August 1989, an application was made by Messrs. Sharpe, Smith, Burton and Keane to the Industrial Court of Queensland, under the Industrial Conciliation and Arbitration Act 1961-1989 (Qld.). The respondents to that application were the original individual respondents in matter no. QI 6 of 1989. By order made on 8th September 1989 in the Supreme Court of Queensland, that application was removed to that court, and then transferred to the Federal Court of Australia, pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 and complementary state legislation. The intention behind that application seems to be to enable the applicants to pursue orders of the kinds sought in matter no. QI 6 of 1989, even if it should be found that the property the subject of those orders is property of the state registered entity.
19. On 6th September 1989, Mr. Cooke conducted the first public sitting of the inquiry. He announced that he proposed to begin public hearings on 9th October, and would first enquire into the matters specified in paragraph 4 of his terms of reference. He said, "At the conclusion of that public session I intend to write a report on the F.E.D.F.A. while the Commission staff prepares the evidence for the next public session."
20. On 29th September 1989, an application was made by Mr. Goodhew and the other respondents in matter no. QI 6 of 1989 to Mr. Cooke, requesting him to refrain from proceeding with his inquiry until after the completion of matter no. QI 6 of 1989. Mr. Cooke rejected this application on 3rd October 1989.
21. On that date, Mr. Goodhew and the other respondents to matter no. QI 6 of 1989 filed a notice of motion entitled in that proceeding, seeking an order that Mr. Cooke be restrained from conducting the inquiry the subject of paragraphs 4 and 5 of his terms of reference until the hearing and determination of that proceeding. The motion was heard by Spender J. on 5th, 13th, 16th and 17th October. Counsel appeared for the parties to the proceeding, and for Mr. Cooke. Notices pursuant to s.78B of the Judiciary Act 1903 were served on the Attorneys-General. The Attorney-General for the State of Queensland intervened and appeared by counsel.
22. On 18th October 1989, Spender J. delivered an oral judgment and made an
order that Mr. Cooke be restrained from:
"(a) Conducting his inquiry into the subjects23. Two appeals have been brought from the judgment and order of Spender J. The first appeal, matter no. QI 11 of 1989, is by Mr. Cooke. The second, matter no. QI 12 of 1989, is by the Attorney-General for the State of Queensland. Mr. Fleming Q.C. and Mr. Campbell of counsel appeared for Mr. Cooke. Mr. Griffin Q.C. and Mr. Herbert of counsel appeared for the Attorney-General for the State of Queensland. Mr. Keane Q.C. and Mr. Jackson of counsel appeared for the original respondents in matter no. QI 6 of 1989, to resist the appeals. There was also an appearance by Mr. Wallace of counsel for the applicants in matter no. QI 6 of 1989, and the FEDFA, Mr. Cambourne and Mr. Fitzgerald. Those parties by their counsel submitted to any order which the Court might make and withdrew from the hearing of the appeals.
of sub-paragraphs 4(b) and 5(b) of the
Order in Council dated 17 August,
1989 . . ., in public; and
(b) reporting or making recommendation or
publishing evidence or findings with
respect to the subjects of sub-paragraphs
4(b) and 5(b) of the said Order in Council,
until the termination of the proceedings
pending in (matter no. QI 6 of 1989) or
further order."
24. It was conceded by the appellants that the Court has power to enjoin a commission of inquiry from proceeding either at all or in respect of certain matters, or in public, if its appointment or the manner in which it is conducted amounts to a contempt of court. So much is apparent from the decisions of the High Court of Australia in State of Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 ("the BLF case") and Hammond v. The Commonwealth [1982] HCA 42; (1982) 152 CLR 188. It is not open to the executive government to set up a commission to inquire into the very subject matter of pending court proceedings. Nor can a commission of inquiry which has been established validly enter upon an inquiry into the very subject matter of pending court proceedings.
25. In the present case, it was not alleged that the appointment of Mr. Cooke itself amounted to a contempt of court. Rather, what was argued before Spender J. was that, having regard to the simultaneous conduct of the proceeding in matter no. QI 6 of 1989 and the inquiry of Mr Cooke, the public continuance of the latter, and a resultant report would amount to a contempt of court. The major issue in these appeals is whether the evidence before Spender J. was sufficient to make out a case for the intervention of the Court.
26. It must be remembered that there is no allegation that an actual contempt
of court has been committed in the present case. What
is alleged is a
threatened contempt, the nature of the threat being the conduct of a public
inquiry into the matters the subject
of sub-paragraphs 4(b) and 5(b) of the
terms of reference, and a prompt report of the results of that inquiry.
Because the events
with which the Court is concerned are necessarily to occur
in the future, there are difficulties of prediction. It is clear from
passages
in the judgments of the majority in the BLF case that the Court must apply a
stringent test before restraining the conduct
of a commission of inquiry. As
Gibbs C.J. put it at p 56:
"There is a contempt of court of the kindMason J. (as his Honour then was) at p 98 said:
relevant to the present case only when there
is an actual interference with the
administration of justice, or "a real risk, as
opposed to a remote possibility" that justice
will be interfered with: cf. Attorney-General
v. Times Newspapers Ltd. ((1974) AC at p
299). The essence of this kind of contempt is
a "real and definite tendency to prejudice or
embarrass pending proceedings": John Fairfax
& Sons Pty. Ltd. v. McRae ((1955) 93 CLR
351, at p 372)."
". . . the restrains should not be imposed unlessAt p 137, Wilson J., with whom Aickin J. expressed agreement, applied the test that:
it is established that it is necessary to
avoid a substantial risk of serious injustice.
It is not enough in my view to show that there
is some apprehension of injustice arising from
some tendency to prejudice."
". . . the risk of prejudice arising from the27. The decision of the House of Lords in Attorney-General v. Times Newspapers Ltd. (1974) AC 273 was concerned with the issue of public pre-judgment of the issues in pending court proceedings by publication of comments about those issues in a newspaper. Their Lordships treated the publication itself as amounting to a contempt of court. In determining whether to grant an injunction to restrain further similar publication, their Lordships undertook a process of balancing the respective public interests. On the one hand, the right of free speech was recognised, and it was said that this right should not be infringed any more than was necessary. On the other hand was the right to a fair trial and the necessity for a civilised society to have a system of justice the integrity of which is unquestioned. In the BLF case, a similar process of balancing was also undertaken, but at a different point in the process of reasoning. It seems that, in Australia, it is necessary to balance the competing public interests in order to determine whether there is a contempt, rather than in order to decide whether the court should grant some remedy in respect of what has been held to be a technical contempt. See especially Gibbs C.J. at p 60 and Mason J. at pp 96-97.
continuance of the inquiries in public is
"serious or real or substantial", to use the
words of Lord Morris of Borth-y-Gest in Times
Newspapers Ltd.".
28. The balancing process in a case such as the present will involve many factors. As was emphasised in the BLF case, there is a substantial public interest in the conduct of a commission of inquiry which seeks to determine whether some alleged misconduct occurred, or some social problem has arisen which might require redress. It is also important that the proceedings of such a commission of inquiry should be open to that public scrutiny which constitutes the ultimate safeguard against the sorts of tyranny and oppression which have long been associated in the minds of common lawyers with the Court of Star Chamber. On the other side of the scale, when examining the need to preserve the integrity of the judicial process, a number of factors must be borne in mind. There is a greater need to protect from public pre-judgment a case involving a jury than a case to be tried by a judge sitting alone. This is because judges are assumed to be immune from influence by public discussion or decisions in non-judicial inquiries. They are aware that selective and inadequate reporting of the evidence in such inquiries occurs, and that commissions of inquiry are often not bound by the rules of evidence, and may therefore receive material not admissible in court proceedings. Perhaps the strongest need for protection of the courts arises in criminal proceedings, where ordinarily there is a jury, and where the right of an accused person to a fair trial will usually require that the issues which will arise at that trial be not canvassed publicly at some time close to the trial, and that the accused not be called upon to give evidence on those issues in advance of the trial.
29. It was argued on behalf of the appellants in the present case that the conduct of a commission of inquiry itself and the handing of its report to the executive government could never give rise to a substantial risk of interference with the processes of a court, because it is only by the operation of other factors that the proceedings of a commission of inquiry, and the contents of its report, become known to the public. It is only to the extent to which evidence and submissions to a commission of inquiry are reported by the news media that they will come to the notice of people generally. It is only if the executive government decides to release a report, and the news media carry some account of it, that the conclusions of a commission of inquiry will become widely known. For this reason, it was said that a court ought not to restrain a commission of inquiry in any way, but ought, if necessary, to restrain the news media as to what is published, or the executive government against releasing the report. The submission was based on a passage in the judgment of Wilson J. in the BLF case at p 132, in which his Honour raised but did not decide the question. There is certainly no authority that a court is confined to restraining publication of the proceedings or report of a commission of inquiry. Indeed, the BLF case itself makes it clear that, in some circumstances, the court can impose restraints on the conduct of a commission of inquiry, and on its reporting. One of the purposes of conducting a commission of inquiry is that the matters investigated by it should be made public. As is pointed out above, there is a considerable safeguard in public hearings. With great respect to Wilson J., it is naive to suppose that a public inquiry could be held without at least some of its proceedings being the subject of reporting in the news media. Further, it is more probable than not that a report, once delivered to the executive government, will be tabled in parliament and become public. There would be little point in the executive government receiving such a report and keeping it secret. Accordingly, it is proper to consider whether the conduct of Mr. Cooke's commission of inquiry in public, or the production of its report into the relevant matters, would be proper, on the assumption that the proceedings themselves and the contents of the report will become public knowledge.
30. It should be noted that the concern in the present case is not the continuance of the inquiry itself. The order made by Spender J. restrains only the conduct of the inquiry in public, and the delivery of a report. Mr. Cooke has stated his intention not to receive evidence while the Federal Court of Australia is conducting the trial of matter no. QI 6 of 1989. No question arises, therefore, of interference by the commission of inquiry with the administration of justice by hampering witnesses in attending court to give evidence, or by hindering counsel engaged in the court proceedings, whose attendance might also be considered necessary at the inquiry, from giving their full attention to the trial, or by reducing the ability of persons or organisations participating in both from having adequate opportunity to attend at the trial and to give proper instructions to their legal advisers. The application before Spender J. was based solely upon the allegation of public pre-judgment, both by the conduct of the inquiry in public and by its report.
31. The appellants contended that the inquiry did not touch upon the proceedings in court, because the issues in the two were different. It is true that the ultimate issues are not the same. In matter no. QI 6 of 1989, the issues are whether breaches of the rules of the FEDFA have occurred or are likely to occur. Mr. Cooke is called upon by the relevant paragraphs of his terms of reference to report upon whether contraventions of the law of the State of Queensland have occurred. Such a comparison of ultimate issues is more likely to conceal than to reveal the extent to which the two hearings may touch each other.
32. Fundamental to an inquiry into the matters the subject of sub-paragraphs 4(b) and 5(b) of Mr. Cooke's terms of reference will be the ascertainment of just what are "the assets and property of" the state registered entity. This may involve in turn questions whether the state registered entity had or has any existence separate from the Queensland branch of the FEDFA. If such separateness be established, questions will arise of the ownership of assets and property, as between the FEDFA and the state registered entity. Without reaching conclusions on those fundamental matters, Mr. Cooke would not be in a position to discharge his obligation to inquire into the matters the subject of those sub-paragraphs of his terms of reference. They are the very questions which are agitated in matter no. QI 6 of 1989.
33. Counsel for Mr. Cooke stated that Mr. Cooke has formed a view that the power given to him by paragraph 6 of his terms of reference would enable him to conduct an inquiry concerning the elections, assets and property of, among other bodies, organisations registered under the Act. The question whether the phrase "any other industrial union of employees" in paragraph 6 of the terms of reference, incorporating as it does words which clearly have their origin in the Industrial Conciliation and Arbitration Act 1961-1989 (Qld.), is appropriate to comprehend organisations registered under the Act, is not one which this Court is called upon to determine. It is enough to say that, if Mr. Cooke were to embark upon an inquiry into the obtaining or dealing with the assets and property of the FEDFA, his inquiry would touch even more closely the issues the subject of matter no. QI 6 of 1989.
34. Even if questions as to the ownership of property were not controversial in either the inquiry or matter no. QI 6 of 1989, there would still be a considerable overlap of investigation. The pleadings in matter no. QI 6 of 1989 raise questions of misappropriation of funds. An inquiry whether any law of the State of Queensland was contravened by any person in connection with dealing with assets or property will undoubtedly also cover the question whether misappropriation has occurred. The fact that the ultimate issue in the court will be whether there was a breach of the rules of the FEDFA, while the ultimate issue in the inquiry will be whether there is evidence of contravention of state laws, does not diminish significantly the area of duplication.
35. It is apparent from the authorities that public pre-judgment of issues arising in a proceeding in a court can amount to an interference with the administration of justice. Public expectation that a court will reach a particular result may lead to public pressure for that result to be achieved, and to loss of public confidence in the court if it is perceived as having achieved an incorrect result. A judge sitting alone is well able to withstand the public pressure. Courts do not have available to them the means of dealing with a potential loss of confidence, other than by prohibiting public pre-judgment of their proceedings in appropriate cases. Counsel for the appellants put that no greater loss of public confidence is involved than where, for instance, two courts in separate proceedings arrive at different results in relation to the same controversy between the same parties, or where a decision of a court is found by subsequent inquiry to have been flawed. Cases of the former type are rare, and are normally dealt with by one court staying its hand, or staying the hands of the litigants in the other court, until a resolution of the controversy is achieved in one place. Cases of the second kind will occur from time to time, and will naturally have damaging effects on the perception of courts. In such cases, however, it is better to overturn an incorrect result than to allow its effects to persist. Where, as is the case with these appeals, it is possible to prevent public pre-judgment, without doing significant damage to the commission of inquiry itself, or the purposes for which it is being conducted, there is an opportunity to avoid damage.
36. In this context, the timing of events is of great importance. It must be remembered that the matter of concern is public pre-judgment. Nothing which happens in a commission of inquiry after a court has given its judgment can amount to public pre-judgment. In fact, a commissioner not bound by the rules of evidence would, as a matter of course, take into account a recent judgment of a court, dealing with the very issues into which he or she was required to inquire whilst being, of course, free to disagree with the court's conclusion, on the basis of evidence which was not before the court. The timing of events was crucial to the application before Spender J. with respect to Mr. Cooke's inquiry.
37. At his first public sitting on 6th September 1989, Mr. Cooke said:
"Shortly before my appointment the policeA subsequent application was made to Mr. Cooke that he vacate the date fixed for the start of his inquiry into the matters specified in paragraphs 4 and 5 of his terms of reference. His attention was drawn to matter no. QI 6 of 1989, and to the issues involved in that proceeding. On 3rd October 1989, Mr. Cooke announced his decision to proceed. He estimated that the evidence to be presented in relation to paragraphs 4 and 5 of his terms of reference would take between four and six weeks. There was also evidence before Spender J., in the form of an affidavit from the solicitor assisting the commission of inquiry, that summonses had been served on a number of witnesses, to enable the public hearing of evidence on 16th October.
began to investigate certain allegations
concerning officials of the Federated Engine
Drivers' and Firemens' Association of
Australia, Queensland Branch. These
investigations will be continued under the
auspices of the Commission. My staff are
currently pursuing other inquiries into this
union's affairs. It is my intention to
inquire into the affairs of this union first.
I am anxious to complete these inquiries as
soon as possible. The cooperation of all
concerned will help to achieve this. Subject
to the completion of investigations by my
staff, I propose to fix Monday 9 October as
the date on which public hearings will begin
into the matters specified in the 4th term of
reference. At the conclusion of that public
session I intend to write a report on the
F.E.D.F.A. while the Commission staff prepares
the evidence for the next public session. The
unions named in the terms of reference will be
kept informed of the programmed dates for
public sessions. My final report will deal
with the matters referred to in the 7th term
of reference."
38. Given that public hearings of the commission of inquiry prior to the trial of matter no. QI 6 of 1989 would receive publicity in the news media, it is unlikely that those public hearings would have any substantial effect on the administration of justice. People are accustomed to hearing reports of the opening addresses of counsel and of evidence in various kinds of proceedings. Ordinarily, such reports distinguish between addresses, evidence and the decisions of courts. Reports of committal proceedings in respect of criminal charges are not normally regarded as involving pre-judgment of those charges. Whilst there might be some confusion arising from the conduct of public hearings, that confusion is not sufficient to amount to a threatened contempt of court. By any of the tests referred to in the majority judgments in the BLF case, Spender J. should not have restrained Mr. Cooke from conducting public hearings. Accordingly, the appeal should be allowed to the extent to which it relates to paragraph (a) of the order, and that paragraph should be quashed.
39. With respect to the order restraining Mr. Cooke from reporting or making recommendation or publishing evidence or findings with respect to the subjects of sub-paragraphs 4(b) and 5(b) of his terms of reference, the position is different. Mr. Cooke's expressed determination to proceed to finality as soon as possible, and the arrangements made to put into effect that determination, gave rise to a very real probability that a public report of the commission of inquiry with respect to the matters referred to in sub-paragraphs 4(b) and 5(b) of the terms of reference would be made prior to the giving of judgment in matter no. QI 6 of 1989. Such a report would amount to a public pre-judgment of a kind which would have a very substantial tendency to interfere in the administration of justice, for the reasons which have already been set out. Accordingly, Spender J. acted correctly in making paragraph (b) of his order, and the appeals should be dismissed insofar as they relate to that paragraph.
40. An issue also arose as to the relevance of s.4A(4) of the Commissions of
Inquiry Act 1950-1989 (Qld.). It is under that Act that
Mr. Cooke has been
appointed to conduct his commission of inquiry. Section 4A(4) provides:
"A Commission may continue to make andIt was not suggested that this provision gave to a commission of inquiry in Queensland immunity from orders of the Federal Court in all respects. Rather, it was argued that the provision was imported into the Federal Court of Australia by s.11 of the Jurisdiction of Courts (Cross-vesting) Act 1987. The argument was that, once the application made originally in the Industrial Court of Queensland, and transferred to the Federal Court of Australia, was so transferred, it became part of the "matter" before the Federal Court of Australia, in the sense in which the word "matter" was used in Stack v. Coast Securities (No.9) Pty. Ltd. [1983] HCA 36; (1983) 154 CLR 261, and the Federal Court of Australia was obliged to apply the law of the State of Queensland with respect to the whole "matter". This argument is obviously fallacious. The cross-vesting legislation discloses no intention to reduce the status, jurisdiction or powers of any court to which a matter is transferred. If the Federal Court of Australia, in the exercise of its jurisdiction in matter no. QI 6 of 1989, possesses power to restrain a contempt of court, that power cannot be taken away, simply because a proceeding (which may or may not be dealt with concurrently by the Federal Court of Australia) is transferred from the State of Queensland. In any event, there must be a doubt whether s.4A(4) of the Commissions of Inquiry Act 1950-1989 contains wording sufficiently clear to authorise a contempt of court, but this question need not be answered in the present proceeding.
complete its inquiry and report and may do all
such acts and things as are necessary or
expedient for those purposes notwithstanding
that any other proceedings may be in or before
any court, tribunal, warden, coroner, justice
or other person and notwithstanding any order
made by a court with respect thereto."
41. Finally, there was before this Court a cross appeal from the refusal of
Spender J. to award costs. In his reasons for judgment,
his Honour said,
"These are proceedings in the Industrial Division of the Federal Court
pursuant to the Industrial Relations Act 1988, and I make no order as to
costs." No doubt his Honour had in mind s.347 of the Act, which provides as
follows:
"347(1) A party to a proceeding (including anIt will be seen that the question whether costs may be awarded depends upon whether the application before Spender J. was a proceeding in a matter arising under the Act. In Viner v. Australian Building Construction Employees' and Builders Labourers' Federation (No.1) (1981) 56 FLR 5, at pp 27-32, Northrop J. considered the question whether an application by notice of motion, filed in a proceeding for the deregistration of an organisation registered under the Conciliation and Arbitration Act 1904, and directed to the proprietors of two newspapers, seeking to punish them for contempt of court, was a proceeding in a matter arising under the Conciliation and Arbitration Act 1904. His Honour held that the proceedings for contempt were separate from the proceeding in respect of which the contempt was alleged to have been committed. Further, his Honour held that, by being proceeded against by notice of motion, the alleged contemnors did not become parties to the deregistration proceeding. The decision of Northrop J. was followed in Gregory v. Philip Morris Ltd. (1987) 74 ALE 300, at p 308. Counsel for the appellants did not invite this court to depart from the reasoning of Northrop J., which should be followed. There was therefore no statutory bar to the awarding of costs, and his Honour ought not to have refused them without considering the necessary discretionary factors.
appeal) in a matter arising under this Act
shall not be ordered to pay costs incurred by
any other party to the proceeding unless the
first-mentioned party instituted the proceeding
vexatiously or without reasonable cause.
(2) In subsection (1):
"costs" includes all legal and
professional costs and disbursements and
expenses of witnesses."
42. The applicants on the notice of motion before Spender J. succeeded. In the ordinary course, costs would have followed the event, there being no reason which would dictate the exercise of the discretion in any other manner. Notwithstanding that the applicants before Spender J. succeeded to a greater extent than they should have, Mr. Cooke should have been ordered to pay their costs of that proceeding.
43. As to the question of costs on appeal, in my view the appellants have succeeded in part, but have failed to persuade the Court that the order of Spender J. should be set aside altogether. They have also failed on the costs issue in the cross appeal. In those circumstances, they should be ordered to pay the costs of the respondents who contested the appeal and of the cross-appellants. There should be no order for costs in favour of those parties who submitted to the order of the Court.
44. Since writing the initial draft of these reasons for judgment, I have learned that Spender J. has discharged his order of 18th October 1989. But for that event, I would have allowed the appeals as to paragraph (a) of that order, and set aside that paragraph. I would have dismissed the appeals as to paragraph (b) of the order. Having regard to the discharge of the orders, it would now be sufficient simply to allow the appeals in part and dismiss them in part. I would also allow the cross appeal, and order that Mr. Cooke pay the costs of the proceeding before Spender J. I would order the appellants to pay the costs of these appeals, except of the respondents who merely submitted to the order of the Court.
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