Judgment Delivery - Transcript of Video

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries [2000] FCA 708

MERKEL J
29 MAY 2000
 MELBOURNE


[Justice Merkel sitting at bench]

Justice Merkel: I propose to read out a summary of my reasons for judgment, but I wish to emphasise that the reasons for judgment contain the reasons of the Court and not the summary.

On 12 May 2000 the Court declared, and I quote:

“The fourth respondent, Craig Johnston, the fifth respondent, Dean Mighell and the sixth respondent, Cesar Melhem are guilty of contempt of this Court by their conduct in breaching paragraph 2 of the orders made by Justice Whitlam on the 22nd of November 1999 by failing to provide to the applicant (that’s the AIG) by 10.00 am on Tuesday, the 23rd of November 1999 or at all, a written notice on the letterhead of the MTFU in the terms set out in clause 3.2 (second occurring), of the Order of the Australian Industrial Relations Commission made on 20 November 1999 in proceeding C No 24275 of 1999.”

In my reasons for judgment, I emphasised that the contempt which was committed by senior officials of a national trade union federation was serious. I also said that unions and their officers cannot expect to obtain injunctions against employers in industrial disputes when it suits their interests and objectives, and ignore injunctions obtained by employers against them because it suits their interests and objectives to do so.

Dean Mighell and Craig Johnston did not seek to mitigate their contempt by an apology or statement indicating any regret for or remorse about their conduct in breaching the orders of Justice Whitlam. Rather, they maintained their position with defiance. The submissions made on their behalf suggest that the contravening conduct could be repeated if Mr Mighell or Mr Johnston saw that course as consistent with their political beliefs. One of those beliefs was said to be that workers have a right to meet. Plainly workers, as well as other members of the community, have a right to meet.  However, that right, as with all other rights, is to be exercised in accordance with law. Consequently, the right to meet does not permit those wishing to exercise the right to trespass upon or ignore the legal rights of others.

As I explained in my previous reasons for judgment, if Mr Mighell or Mr Johnston had grounds for believing that the orders made by Justice Whitlam wrongfully infringed the rights of workers to attend a mass stop-work meeting during working hours or as union officials to organise those meetings, then the appropriate remedy was to challenge those orders by way of appeal, rather than by disobedience.

In contrast to the position adopted by Mr Mighell and Mr Johnston, Cesar Melhem, through his Counsel, indicated that he wished to apologise to the Court for his contempt. In particular, Mr Melhem acknowledged that the administration of justice requires that the Court not be frustrated in its processes or in its orders. He also acknowledged that in not complying with paragraph 2 of the orders of Justice Whitlam, there was an interference with the administration of justice and the authority of the Court, for which Mr Melhem unreservedly apologised.

I have concluded that other than in respect of costs, no financial penalty should be imposed on Mr Melhem. He has unreservedly apologised for his contempt. Secondly, in his capacity as assistant secretary of the MTFU, he does not appear to have been a major protagonist of the decision making activities that gave rise to the contempt. Finally, Mr Melhem did not make public statements defying the authority of the Court or of its orders.

However, I have concluded that it is appropriate to impose a fine in respect of the breaches of the Court orders by Mr Mighell and Mr Johnston. I have determined that, in all the circumstances, individual penalties of $20,000 are appropriate for both Mr Mighell and Mr Johnston respectively. They have been the major protagonists in respect of the contempt, have publicly defied the orders made against them, have not apologised for, nor otherwise endeavoured to purge, their contempt and have shown no remorse or regret for their actions. I do not regard it as appropriate, however, that I impose an added provision that a term of imprisonment be served in default of payment.

The Court makes the following orders:

1. A fine of $20,000 be imposed on the fourth respondent, Craig Johnston.

2. A fine of $20,000 be imposed on the fifth respondent, Dean Mighell.

3. The said fines be paid to the District Registrar of the Federal Court of Australia, 305 William Street, Melbourne, within 30 days.

4. (a) The fourth, fifth and sixth respondents pay the applicant’s taxed costs incurred in respect of its motion for contempt in respect of paragraph 2 of the orders of Justice Whitlam made on the 22nd November 1999.

(b) The applicant pay the fourth, fifth and sixth respondents’ taxed costs incurred in relation to the applicant’s motion for contempt in respect of paragraph 1 of the orders of Justice Whitlam made on the 22nd November 1999.

5. Liberty to apply be reserved.

I’ve reserved liberty to apply as I’ve explained in my reasons for judgment in the event that any problems arise concerning enforcement.

I publish the reasons of the Court for those orders.

Yes, adjourn the Court please.

Court Officer: All stand. The Court is now adjourned.

[Justice Merkel stands, bows and walks away from bench]