AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 (13 August 1986)

HIGH COURT OF AUSTRALIA

A.M.I.E.U. v. MUDGINBERRI STATION PTY. LTD. [1986] HCA 46; (1986) 161 CLR 98

F.C. 86/048

Contempt of Court

High Court of Australia

Gibbs C.J.(1), Mason(1), Wilson(1), Brennan(2) and Deane(1) JJ.

CATCHWORDS

Contempt of Court - Civil and criminal contempt - Federal Court - Powers - Fine for civil contempt - Daily fine for existing and continuing contempt - Anticipatory punishment for future default in complying with order - Sequestration order in execution of order imposing fines - Judiciary Act 1903 (Cth), s. 24 - Federal Court of Australia Act 1976 (Cth), ss. 23, 31.

HEARING

1986, March 19; August 13. 13:8:1986

APPEAL from the Federal Court of Australia.

DECISION

GIBBS C.J., MASON, WILSON and DEANE JJ.: The principal issue in this appeal is whether the Federal Court has power to impose a fine in respect of a contempt consisting of wilful disobedience to an injunction and future acts of disobedience. There are subsidiary issues which relate to (a) the Federal Court's power to issue subsequently a writ of sequestration in respect of the appellants' non-payment of the fines; and (b) compliance with proper procedures applicable to proceedings for contempt.

2. The circumstances in which the proceedings for contempt were initiated against the appellants may be briefly stated. The respondent ("Mudginberri") conducts an abattoir and export meat processing works some 200 kilometres east of Darwin. Its operations include the slaughter, boning, sale and export of cattle and buffalo. A dispute arose between the appellant Union ("the Union") and Mudginberri over the system of payment which was in operation at the abattoir. Following decisions of the Australian Conciliation and Arbitration Commission ("the Commission") a contract system was introduced. It included a minimum payment provision which was designed to ensure that for work done an employee would receive not less than his entitlement under the relevant award plus 20 per cent. The amount of remuneration to which an employee was entitled under the contract system varied in accordance with the particular employee's rate of production. The Union objected to the negotiation by Mudginberri of agreements with individual employees rather than with the Union. The Union established a picket line at the abattoir in support of its objection.

3. Mudginberri then sought an interlocutory injunction in an action for relief under s.45D(1) of the Trade Practices Act 1974 (Cth). On 12 June 1985 Beaumont J., having found that Mudginberri had made out a prima facie case for relief and that a serious question arose as to the availability of any defence under s.45D(3)(b), granted an interlocutory injunction. The injunction restrained the appellants and each of them until the final determination of the action or further order by themselves, their servants or agents:



"... from imposing, maintaining, giving effect to

or enforcing any ban on the provision of goods or

services to the applicant at the Mudginberri

Abattoirs ("the Abattoirs") or from setting up or

maintaining any picket line at or in the vicinity

of the Abattoirs where any such ban or picket line

has the purpose and would have or be likely to have

the effect of preventing or hindering the ordinary

day-to-day activities and operations of the

Abattoirs' business including:

repair at the Abattoirs;

(b) the delivery of any livestock for slaughter

and processing;

(c) the access to and egress from the Abattoirs

of any person or persons providing goods or

services to the Abattoirs or otherwise

involved or engaged in its ordinary

day-to-day activities in the conduct of its

business as an export meat processing works

and an abattoirs licensed to process and

export meat from Australia;

(d) the egress from the Abattoirs of any product

of the Abattoirs;

(e) the sale of any processed products or

by-products of the Abattoirs."

4. On 21 June 1985, on the application of Mudginberri, Bowen C.J. found that the Union was in breach of the order of Beaumont J. by continuing to maintain its picket line on and after 12 June 1985. The appellants were respondents to the application, along with the Meat Inspectors' Association and two other persons. Bowen C.J. was satisfied that the Union had been served with the order made by Beaumont J. on 12 June 1985 and that the order was endorsed with a notice calling the attention of the Union to the possible consequences of non-compliance. His Honour was also satisfied that the picket line remained in place with the approval of the Union, thereby giving effect to the intention of the Union to keep the line in place as earlier declared by its Secretary. In these circumstances there can be no doubt that the finding of contempt amounted to a finding of wilful contempt, though the learned judge stated that the orders he intended to make were directed to securing obedience to the interlocutory injunction.

5. His Honour then made the following orders:

"1. The motion in respect of the Second to Fifth

Respondents be stood over with liberty to

restore on seven (7) days notice.

2. The First Respondent (the Union) be fined Ten

thousand dollars ($10,000) in respect of

breach of order of Beaumont J., of 12th June

1985 and from service of this order onwards,

further fine of Two thousand dollars ($2,000)

per day so long as the breach continues.

3. Liberty be given to all parties to apply on

two (2) days notice.

4. The First Respondent is to pay the costs of

the Applicant of this motion against the

First Respondent.

5. The fine of Ten thousand dollars ($10,000) be

paid to the Registrar of this Court within

seven (7) days of service of this order upon

the First Respondent.

6. A daily fine of Two thousand dollars ($2,000)

if and when incurred be paid to the Registrar

within forty eight (48) hours of it being

incurred."

6. After 21 June 1985 the action came on for hearing before Morling J. On 12 July his Honour held that Mudginberri had made out its case under s.45D(1) and that the defence under s.45D(3) had not been established. He granted permanent injunctions against the appellants. The terms of the injunctions were broadly similar to the interlocutory injunction. Morling J. further ordered that upon his order coming into operation on 12 July 1985 the interlocutory injunction granted by Beaumont J. be dissolved.

7. Subsequently the earlier application which came before Bowen C.J. was restored to the list and an application was made by Mudginberri seeking the issue of a writ of sequestration against the Union. A similar application was made by Mudginberri against Mr O'Toole, the second appellant.

8. On 18 July 1985 his Honour found that the fine of $10,000 imposed on the Union on 21 June 1985, which was payable within seven days of the service of the order on the Union, had not been paid to the Registrar notwithstanding due service of the order on 24 June. His Honour also found that the Union maintained the picket line in place between 21 June and the date of the second hearing before him on 15 and 16 July. The daily fine of $2,000 per day was incurred from 24 June, the date of service of the order, until 12 July, when the interlocutory injunction granted by Beaumont J. was dissolved. The daily amounts, which were expressed to become payable to the Registrar within 48 hours of being incurred, were not paid. The total amount of unpaid fines was therefore $10,000 plus 17 days at $2,000 per day, a total of $44,000.

9. His Honour, noting that the Secretary of the Union had publicly stated that it would not pay the fine, found that the Union had engaged in a course of public defiance of the order of 12 June. His Honour held that a writ of sequestration should issue. In the result it was ordered that:



1. A writ of sequestration issue against the Union in accordance with the form set out in the Schedule to the order.

2. The appellants pay Mudginberri's costs of the proceedings incurred since 21 June 1985.

3. Mudginberri and the Union have liberty to apply on two days notice.

4. The operation of the order be suspended up to and including 24 July 1985.

10. Although Mudginberri's application for leave to issue a writ of sequestration against the Union related to a writ sequestering the Union's property until it ceased to engage in maintaining a picket line, the form of writ set out in the Schedule to the order was altogether different. It sought sequestration as a means of execution of the fines. It called upon the sequestrators to take possession of the Union's property and:

"... to pay to the Registrar of this Court out of

any proceeds or moneys in your hands the whole or

from time to time any part of the fines totalling

Forty four thousand dollars ($44,000.00) imposed

on the AMIEU until the same are fully discharged

and further note that we order that the costs and

expenses of executing this Writ as sequestrators be

taxed and after the said fines of $44,000.00 have

been paid in full the (sic) be paid out of the

proceeds and moneys in your hands and further note

that we authorise and command you to pay the

balance of the proceeds and moneys in your hands

from time to time into Court and this Writ shall

operate until this Court makes orders to the

contrary."

11. The Union appealed to the Full Court of the Federal Court from the order imposing fines on 21 June and from the order directing the issue of a writ of sequestration on 18 July. The Full Court (Smithers, Northrop and Toohey JJ.) dismissed the appeal. It is from the order dismissing that appeal that the appellants now appeal to this Court.

12. They make the following submissions:



(1) the Federal Court had no power to impose a fine for a civil contempt, the contempt charged being a civil contempt;

(2) the Federal Court had no power to impose an anticipatory punishment for future default in complying with a court order;

(3) if the submission in (2) above is correct, the whole of the fines order is invalid because it is inseverable, even if the submission in (1) above is incorrect;

(4) the sequestration order was invalid, because it issued by way of execution in aid of the fines order, this not being a proper use of a sequestration order; and

(5) the procedures prescribed by Ord. 40 of the Federal Court Rules were not complied with in the case of the sequestration order.

13. Section 23 of the Federal Court of Australia Act 1976 (Cth) enables the Federal Court to make orders of such kinds and to issue writs of such kinds as the Court thinks appropriate. The section authorizes the Court, in matters in respect of which it has jurisdiction, to fine for offences and to issue writs of sequestration. By s.31 of the same Act the Federal Court is invested with the same power to punish for contempt as the High Court. Section 24 of the Judiciary Act 1903 (Cth) provides:

"The High Court shall have the same power to punish

contempts of its power and authority as is

possessed at the commencement of this Act by the

Supreme Court of Judicature in England."

The Judiciary Act commenced on 25 August 1903. On that date the Supreme Court of Judicature in England had power to punish for contempt, whether civil or criminal.

14. Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as "civil contempt"; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as "criminal contempt" (Fox, The History of Contempt of Court (1927), at p.1). As Lord Diplock said in Attorney-General v. Leveller Magazine Ltd (1979) AC 440, at p 449, criminal contempts:

"... all share a common characteristic: they

involve an interference with the due administration

of justice either in a particular case or more

generally as a continuing process."

15. The distinction, not recognized in Scotland, which has often been made between civil and criminal contempt seems to have originated in the seventeenth century (Report of the Committee on Contempt of Court (1974) Cmnd. 5794, at par.22). The existence of the distinction has been recognized in judgments of this Court (R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208, at pp 243, 253-254; John Fairfax & Sons Pty Ltd v. McRae [1955] HCA 12; (1955) 93 CLR 351, at pp 363-364; Australian Consolidated Press Ltd v. Morgan [1965] HCA 21; (1965) 112 CLR 483, at pp 489, 497-500). The principal theoretical basis of the distinction is that disobedience to the process and orders of the court in civil proceedings is said to be a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement, whereas impeding the administration of justice is a public wrong. A secondary basis for the distinction is that the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive (Ansah v. Ansah (1977) Fam. 138, at p 144).

16. The distinction has been attended by some practical consequences connected with procedure, onus of proof, right of appeal, mode of punishment, privilege from arrest, pardon and power to release an offender (Harnon, "Civil and Criminal Contempts of Court" (1962) 25 Mod. L. Rev. 179), though differences in approach to these matters have largely disappeared in more recent times. According to some authorities, criminal, but not civil, contempt could be punished by the imposition of a fine. More recent decisions indicate that a fine may be imposed when the contempt consists of wilful disobedience to a court order in the sense that the disobedience is not casual, accidental or unintentional. The correctness of this approach is, of course, a critical issue in this appeal.

17. In the light of these complexities it is not surprising that the distinction between the two classes of contempt has been subjected to increasing scrutiny. The theoretical distinction between the two classes overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt (1983) 2nd ed. say, at p.3:

"If a court lacked the means to enforce its orders,

if its orders could be disobeyed with impunity, not

only would individual litigants suffer, the whole

administration of justice would be brought into

disrepute."

See also Canada Metal Co. Ltd v. Canadian Broadcasting Corporation (No. 2) (1975) 48 DLR(3d) 641, at p 669. There is, accordingly, a public interest in the exercise of the contempt power in cases of disobedience to an order, though Lord Diplock suggested in Attorney-General v. Times Newspapers Ltd (1974) AC 273, at p 308, that:

"... no sufficient public interest is served by

punishing the offender if the only person for whose

benefit the order was made chooses not to insist on

its enforcement."

18. The unsatisfactory nature of the distinction is attested by the arbitrary classification of some instances of disobedience to an order as examples of criminal contempts. They include wrongful interference with a ward of a court, whether contumacious or not (Wellesley v. The Duke of Beaufort [1831] EngR 809; (1831) 2 Russ & M 639; 39 ER 538; Scott v. Scott (1913) AC 417, at p 462), disobedience to an order for delivery up of a child (Corcoran v. Corcoran (1950) 1 All ER 495, but cf. Reg. v. Barnardo (1889) 23 QBD 305), any breach of an order forbidding molestation of a person (Stourton v. Stourton (1963) P 302, at p 310) and contempts by officers of the court and others who have a special relationship with the courts, for example, solicitors (Seldon v. Wilde (1911) 1 KB 701) and liquidators (In re Grantham Wholesale Fruit Vegetable and Potato Merchants Ltd (1972) 1 WLR 559). These instances of criminal contempt on the part of solicitors and liquidators may be explained on the footing that they involve disciplinary action against officers of the court.

19. A rather similar notion lies behind the cases in which disobedience to an order which is wilful or contumacious amounts to criminal contempt (see Morgan, at pp.489, per Barwick C.J., 499-500, per Windeyer J.). The point in these cases is that wilful disobedience to a court's order, especially if it occurs in circumstances where the conduct amounts to public defiance, involves a public injury and this calls into play a penal or disciplinary jurisdiction to deal with criminal contempt (Tony Poje v. Attorney-General of British Columbia (1953) 2 DLR 785; Phonographic Performance Ltd v. Amusement Caterers (Peckham) Ltd (1964) Ch 195; Jennison v. Baker (1972) 2 QB 52).

20. It is apparent from the foregoing discussion that very great difficulty has been experienced in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criterion which divides one class of contempt from the other. The extremities to which the distinction has sometimes driven the courts is strikingly illustrated by the absurd proposition, which derives some comfort from Seaward v. Paterson (1897) 1 Ch 545, that the defendant who disobeys an injunction granted against him commits a civil contempt whereas the stranger who aids and abets him is guilty of criminal contempt (see the criticisms of this proposition by Lord Atkinson in Scott, at pp.456-457, and by Cross J. in Phonographic Performance, at pp.200-201). The concept that disobedience to an order becomes criminal when the primary purpose of exercising the power changes from vindication of the rights of the plaintiff to vindication of the authority of the court is both complex and artificial. Salmon L.J. was right when he said in Jennison v. Baker, at p 64, speaking with reference to the enforcement of an injunction generally, that "(t)he two objects are, in my view, inextricably intermixed." When the defendant's disobedience is casual it may readily appear that the primary purpose of exercising the power is to vindicate the plaintiff's rights. On the other hand, when the disobedience is accompanied by public defiance it may as readily be seen that the primary purpose of exercising the power is vindication of the court's authority. But the classification in terms of primary purpose is a more complex and artificial undertaking when the punishment is for wilful disobedience unaccompanied by defiance. There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi-criminal in character, notwithstanding the adoption of the contrary view by some members of this Court in the decisions to which we have already referred.

21. However, the distinction between casual, accidental and unintentional disobedience on the one hand and wilful disobedience on the other offers the prospect of a more limited basis for upholding the imposition of a fine by the Federal Court in the circumstances of this case. Notwithstanding the statements which have been made from time to time that there is no power to fine for civil contempt, the Chancellor's Court in the sixteenth and seventeenth centuries sometimes made use of severe fines, in addition to other measures, "to force recalcitrant persons to submit to its jurisdiction and to obey its decrees", to use the words of Windeyer J. in Morgan, at p.499. The suggestion that there was no such power in the case of civil contempt may be traced back to an observation, made by Lord Selborne L.C. in the debate on the Contempts of Court Bill 1883 (U.K.), that punishment or disobedience to an order of a court was "by imprisonment only, and not by fine" (Great Britain, Parliamentary Debates (1883) vol. 276, at p.1709). The same view was expressed by Windeyer J. in Morgan, at pp.497-498, where his Honour said that the power to fine is limited to criminal offences and therefore to criminal contempts, mere disobedience to an order not having that character. He later observed, at p.499, that "the processes that an equity court uses to enforce its orders are primarily coercive or remedial rather than punitive."

22. In more recent times a strong stream of English and Australian authority has emerged to support the imposition of fines for disobedience to orders in circumstances where the disobedience is wilful (Phonographic Performance; British Motor Trade Association v. Hewitt, reported only in "The Times", 1 June 1951; Multiform Displays Ld v. Whitmarley Displays Ld (1957) RPC 137; Steiner Products Ltd v. Willy Steiner Ltd (1966) 1 WLR 986; (1966) 2 All ER 387; In re Mileage Conference Group of the Tyre Manufacturers' Conference Ltd's Agreement (1966) 1 WLR 1137; (1966) 2 All ER 849; Heatons Transport (St Helens) Ltd v. Transport and General Workers' Union (1973) AC 15; Coonan & Denlay Pty Ltd v. Superstar Australia Pty Ltd (No. 2) [1981] FCA 197; (1981) 57 FLR 118, affirmed on other grounds [1982] FCA 190; (1982) 65 FLR 432; Flamingo Park Pty Ltd v. Dolly Dolly Creation Pty Ltd [1985] FCA 123; (1985) 59 ALR 247). In Phonographic Performance Cross J. held, at pp 198-199, that where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt has a dual character, namely, (a) as between the parties to the proceedings, the element of civil execution and (b) as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court in the public interest. In such a case, at least, "(c)ivil contempt bears much the same character as criminal contempt." His Lordship held that the "very great casualness" of the defendants in complying with the order amounted to "wilful disobedience", though it did not involve a sufficient "measure of contumacy" to warrant the imposition of a fine. His Lordship asserted, at p.200, that there was a lack of logic in saying that in a case of civil contempt "the court has no alternative to sending the defendants to prison", concluding, at p.201, that "the court must have power, in the case of a civil contempt, to impose the lesser penalty of a fine".

23. In Morgan Windeyer J. considered, at pp.499-500, that this conclusion was inconsistent with the comments of Lord Lindley in Seaward v. Paterson and Lord Atkinson in Scott, at pp 497-500. His Honour did not consider the English decisions in Hewitt and Multiform to have authoritative value because the defendants did not contest their liability to a fine, perhaps because had they done so it might have ensured their imprisonment. His Honour pointed out, at pp.501-502, that cases in the United States supported the view that there was no power to fine for civil contempt, and such cases as there were in which fines were imposed for civil contempt were explicable on the basis that they were cases in which the fine was payable to the injured party to make good his actual loss, the fine corresponding to assessment of compensation or an account of profits (see United States v. United Mine Workers of America [1947] USSC 40; (1947) 330 US 258, at pp 303-304; Gompers v. Bucks Stove & Range Co. [1911] USSC 79; (1911) 221 US 418, at p 449; Leman v. Krentler-Arnold Hinge Last Co. [1932] USSC 26; (1932) 284 US 448). Subsequently in his judgment (at pp 502-503), Windeyer J. indicated a view that wilful conduct would not constitute contempt unless it was also "contumacious". In support of that view, his Honour cited (at p 503) Fairclough v. Manchester Ship Canal Co. (1897) WN 7; 41 SJ 225 and Worthington v. Ad-Lib Club Ltd (1965) Ch 236.

24. However, the position has been illuminated by the decisions since Morgan. It can now be seen that Cross J.'s interpretation in Phonographic Performance of the word "wilfully" in Ord.42, r.31 of the Rules of the Supreme Court, 1883 accorded with a proper understanding of what had been said by the English Court of Appeal in Fairclough where the Court contrasted "casual, or accidental and unintentional disobedience" with what was required in a case where "it is sought to commit a private individual to prison for contempt" or "to sequestrate the property of a company upon the ground of disobedience" (see, for example, Steiner, at pp.991-992; p.390 of All E.R.; Mileage Conference, at pp.1161-1162; pp.861-862 of All E.R.; and Flamingo, at p.260). In Steiner Stamp J. imposed a fine upon the defendants as punishment for a contempt constituted by breach of an undertaking to the court in a case which was not one which it was "possible to regard as an obstinate disregard" of the undertaking but which was "simply a case of a failure by the company, for no excuse whatever, to carry out the terms of its undertaking" (at p.992; p.390 of All E.R.). In the course of his judgment, Stamp J. pointed out (at pp.991-992; p.390 of All E.R.) that the Court of Appeal in Fairclough, in expressing the view that it was necessary, in such cases, that the court's "order has been contumaciously disregarded", was using the word "contumaciously" in the narrow sense of "wilfully". Stamp J. expressed the conclusion, in support of which he cited the judgments of Chitty J. in Attorney-General at the Relation of the Leyton (Essex) Urban District Council v. Walthamstow Urban District Council (1895) 11 Times LR 533 and Warrington J. in Stancomb v. Trowbridge Urban District Council (1910) 2 Ch 190, that any "disobedience which was worse than casual, accidental or unintentional must be regarded as wilful". His Lordship had earlier indicated that, if the effect of the decision of Stirling J. in Worthington was that "nothing short of stubborn opposition to the terms of an order or undertaking amounted to wilful disobedience so as to be punishable by proceedings for attachment", he was not prepared to follow it. In that regard, it is of interest to note that in Mileage Conference (at p.1162; pp.861-862 of All E.R.) the members of the Restrictive Practices Court, who included Megaw J. as President and McVeigh L.J., suggested that the approach of Stirling J. in Worthington, which they rejected, had resulted from the fact that the only report of Fairclough which had been cited to Stirling J. had been "the abbreviated eight-line report in the Weekly Notes, and not the fuller and better report in the Solicitors Journal" and that Windeyer J., in Morgan, had likewise referred only to the report of Fairclough in the Weekly Notes when citing that case and Worthington in support of the proposition that conduct which was "wilful, but not contumacious", was not punishable by fine or sequestration. In Mileage Conference, the members of the Restrictive Practices Court (at p.1162; p.862 of All E.R.) accepted as correct the view of the law expressed by Warrington J. in Stancomb (at p.194), namely, that it is no answer to proceedings for contempt "to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order". Thus, it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty" (per Warrington J. in Stancomb, at p.194). In Mileage Conference itself, substantial fines were imposed on companies for contempt by breach of undertaking which was not merely non-contumacious but was committed reasonably on legal advice.

25. The correctness of the approach outlined in the preceding paragraph was endorsed by the House of Lords in Heatons Transport, at p.109; their Lordships explicitly citing Steiner and Mileage Conference as precedents for the imposition of a fine in a case of disobedience to an order which is more than casual, accidental or unintentional. This endorsement was evidently based on the reasoning in the decisions to which we have referred, including an appreciation of the unsatisfactory consequences which would flow from the adoption of the view that there is no power to fine in such cases. To those reasons we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional. It is immaterial that the existence of the power to impose a fine for wilful disobedience to a court order may not have been explicitly recognized in 1903.

26. This conclusion disposes of the appellants' submission that there is no power to fine, because it is plain that the appellants' non-compliance with the interlocutory injunction was wilful and not casual, accidental or unintentional. The picket line remained in place with the approval of the Union after the interlocutory injunction was served on 12 June with the notice endorsed. The evidence indicates that the Union was determined to keep the picket line in place. Furthermore, it should be said that, contrary to the submission advanced for the Union, the original notice of motion showed on its face that the conduct alleged against the appellants went beyond a matter of mere civil contempt, thereby opening up on any view a jurisdiction in the Federal Court to adopt such measures in its discretion, whether punitive or coercive, which would best deal with the contempt. This was a case where the actions of the Union justified the Chief Judge in resorting to both punitive and coercive measures and indeed the fine of $10,000 may partake of the characteristics of both (see United States v. United Mine Workers of America, at pp 299-300).

27. The imposition of a daily fine of $2,000 was clearly coercive as well as punitive, designed to encourage the Union to lift the picket line. It was submitted for the Union that what counsel described as "an anticipatory punishment for future default in complying with a Court order" is beyond power and in support of that proposition reliance was placed on the decision of the House of Lords in Stonor v. Fowle (1888) 13 AC 20 and the decision of Wills J. in Hulbert & Crowe v. Cathcart (1894) 1 QB 244. Those cases may indeed support the proposition. But does the formula upon which the proposition is based describe correctly the imposition of the daily penalty in the present case? We do not think so. In our opinion, the Chief Judge imposed the daily fine in respect of a then presently existing contempt which was continuing in conformity with an attitude of determined disobedience earlier expressed by the Secretary of the Union. It was not a case of successive contempts. There was one contempt which began with the refusal of the Union to abide by the interlocutory injunction granted by Beaumont J. and was continuing on 21 June 1985 when the matter was before Bowen C.J. There will often be elements of futurity in orders of a court which are designed to bring a contempt of court to an end. At stake is the public interest in vindicating the authority of the court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end. There are ample precedents where courts have taken strong measures in order to coerce compliance with an order of the court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made. As soon as the contempt is purged, the offender is entitled to release ex debito justitiae (In re Freston (1883) 11 QBD 545, at pp 554-555, 557). In the case of a corporation, its assets may be seized and remain seized until the contempt ceases. Such an order again exhibits a conditional character. There is much to be said for securing to a superior court a wide range of remedies so that it will be better able to meet the exigencies of particular circumstances. In the United States the suspended fine is well known (Miller, Contempt of Court (1976), at p 12). In Doyle v. London Guarantee Co. [1907] USSC 38; (1907) 204 US 599, a case of continuing civil contempt, the Supreme Court offered no criticism of a conditional order imposing a fine of $250 if certain books and papers were not produced by a certain date. Again, in United States v. United Mine Workers of America the Supreme Court imposed a fine of $2,800,000 conditioned on the failure of the union to comply with a labour injunction within five days. It was considered that such an order would effectively coerce the union into a future compliance with the Court's order. Another example of the flexibility of the orders available to the court may be seen in Con-Mech (Engineers) Ltd v. Amalgamated Union of Engineering Workers (Engineering Section) (1973) I.C.R 620, where the National Industrial Relations Court ordered sequestration of assets to the value of 100,000, but postponed a final decision on the amount of the fine which would become payable so as to give the union time for further reflection. On continued disobedience, a fine of 75,000 was imposed.

28. These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis (Morris v. Crown Office (1970) 2 QB 114, at p 129). It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.

29. In the result, then, we would uphold the imposition of a daily fine as being within the range of remedies available to the Federal Court and a remedy appropriate, in the circumstances of this case, to the objective of securing compliance by the Union with the order of Beaumont J. The fact of continuing disobedience was established and it was the kind of disobedience, namely, the maintenance of a picket line, which was not prone to mitigation short of complete withdrawal. In any event, express liberty to apply to the Court was given to all parties in order to accommodate any material change of circumstances. It is unnecessary to consider the effect of the further order directing payment of the daily fine if and when incurred to the Registrar within forty-eight hours of it being incurred because it was not complied with and the matter came before his Honour again on the motion for the issue of a sequestration order.

30. The Union attacks the sequestration order on the grounds of power and procedural irregularity. On the question of power, it is urged that such an order is not available as a means of executing the order imposing the fines. No authority was cited in support of the proposition and in our view it is without substance. Having regard to the important public interest which the armoury of remedies available to a superior court is designed to serve, there is no reason in principle why the undoubted power to order the sequestration of the assets of a contemnor should not be employed to aid the effectiveness of other remedies to which resort may have been had. There are a number of examples of a writ of sequestration issuing in aid of the collection of fines in the United Kingdom in recent times (see Kidner, "Sanctions for contempt by a trade union" (1986) 6 Legal Studies 18, esp. at pp.27-30).

31. The Union then relies on certain procedural irregularities, the first of which is that the motion seeking the issue of a sequestration order was framed in terms unrelated to the payment of the fines. It was couched in traditional form and sought the detention of the assets pending compliance with the order of Beaumont J. It was filed at a time when the interlocutory injunction was still in force. However, when the motion came on for hearing before Bowen C.J. the interlocutory injunction had been overtaken by the permanent injunction ordered by Morling J. It does not appear how the sequestration order came to assume the form in which it was made whereby it authorized the seizure of the assets of the Union and called on the sequestrators to pay to the Registrar the amount of the fines. However, as the reasons for judgment of Toohey J. in the Full Court show, no objection was taken by the Union either in the hearing before the Chief Judge, or on appeal, to the form of the motion for leave to issue a sequestration order or to the form in which the order issued. It is not open now for the point to be taken. Toohey J. also expressed the opinion that the motion for a writ of sequestration should not have been the vehicle for the imposition of monetary penalties beyond $10,000, at any rate not without notice to the Union of an intention to seek those penalties and without observance of the requirements of Ord. 40 of the Federal Court Rules. But these matters were not raised by the Union on the hearing of the appeal to the Full Court and there is manifest difficulty in entertaining them now. Certainly, we would not minimize the importance of the observance of the rules of court with a view to giving to an alleged contemnor the fullest notice of the conduct that is alleged against him and of the relief that is sought. However, with respect to his Honour, we do not think it is correct to regard the occasion of the hearing of the motion for a writ of sequestration as one for the imposition of monetary penalties. In our opinion, the daily fines were imposed by force of the original order of Bowen C.J. made on 21 June 1985. All that was required at the later hearing was their quantification. That does not mean that the respondent should not have made clear, by an updated motion as soon as the interlocutory injunction ceased to be operative, the terms of the order it sought. But, contrary to the submission of the appellant, it was not necessary for a further charge to accompany the motion for the issue of a writ of sequestration. There was at all times only one charge, that of actively maintaining a picket line contrary to the order of Beaumont J. That charge was duly laid and formed the basis of the first hearing before Bowen C.J. which resulted in the imposition of the fines.

32. We would dismiss the appeal.

BRENNAN J.: I agree with the reasons for judgment of the majority of the Court except in one important respect. I am unable to uphold that part of the order made by Bowen C.J. on 21 June 1985 whereby his Honour ordered that the first appellant ("the AMIEU") be fined $2,000 per day from service of the order onwards so long as the breach of the order of Beaumont J. of 12 June 1985 continued, and further ordered that the daily fine of $2,000 "if and when incurred be paid to the Registrar within forty eight (48) hours of it being incurred".

2. An order which imposes a fine accruing from day to day and which is intended to take effect without further judicial order cannot operate with respect to the future as it can operate with respect to the past. The amount of the fine incurred in respect of days past can be judicially determined when such an order is made; the amount to be incurred in respect of the future cannot. The imposition of a fine is a judicial act and if the fine is to be quantified by reference to a period during which a contempt continues, that period must be judicially determined. It cannot be left to the sheriff or other officer charged with the execution of the Court's order to quantify the fine. Much less can it be left to the party in contempt to determine within 48 hours after a particular day whether it was in contempt on that day. Apart from any constitutional restriction on entrusting a non-judicial officer with the function of determining the amount of the fine in respect of a continuing contempt, it would be contrary to proper practice for the Court to abdicate the function of determining the period during which the penalized contempt continues (cf. Stonor v. Fowle (1887) 13 AC 20, at p 30).

3. The necessity for judicial determination of the facts on which the operation of an order in contempt depends has long been recognized. Thus it has been held to be wrong to direct attachment or sequestration on the occurrence of a future uncertain event (In re Lumley. Ex parte Cathcart (1894) 2 Ch 271, at p 272; Hulbert & Crowe v. Cathcart (1894) 1 QB 244, at p 246), not because of want of jurisdiction to suspend the operation of such an order, but because an order in that form is incorrect: Lee v. Walker (1985) QB 1191, at p 1200. In Doyle v. The Commonwealth [1985] HCA 46; (1985) 59 ALJR 665, at p 669; [1985] HCA 46; 60 ALR 567, at p 574, it was held that an order of committal is wrongly made if it leaves to the officer enforcing it the function of deciding which persons are to be committed. The principle is that, when the operation of an order in contempt depends on the occurrence of an event or the existence of some circumstance, the order must reserve to the court and must not leave to the person charged with the execution of the order the function of determining whether that event has occurred or that circumstance exists.

4. An order which prescribes a daily penalty for a continuing future contempt may be supportable if it provides that the period during which the contempt has continued is to be judicially determined, so that the fine is judicially determined. But that was not the form of the order of 21 June 1985. That order did not merely prescribe a daily penalty by reference to which the amount of the fine might be judicially determined. It purported to impose a fine which would accrue from day to day in the future, and the fine was not contingent on a further judicial determination that the contempt was continuing.

5. In fact Bowen C.J., on 18 July 1985, determined that the daily fine of $2,000 had been incurred in respect of 17 days, but the order which his Honour then made for the payment by the sequestrators of a fine of $44,000 out of the assets of the AMIEU in their hands cannot be construed as a fresh imposition of a fine. In terms, the order of 18 July 1985 was that the sequestrators pay "the fines totalling Forty four thousand dollars ($44,000.00) imposed on the AMIEU ...". That order did not purport to be a fresh exercise of the power to punish for contempt. Indeed, no attempt had been made to comply with the procedural rules which govern the exercise of that power (see O.40 of the Rules of the Federal Court).

6. I agree that the Federal Court has power to make an order prescribing a daily rate of penalty for a contempt continuing into the future when the order contemplates a future judicial determination of the amount of the fine, but I am unable to uphold the immediate imposition of a daily fine for a contempt continuing into the future. It follows that I would allow the appeal in part, set aside so much of the order of 21 June 1985 as imposed a fine of $2,000 per day and vary consequentially the order of 18 July 1985.

ORDER

Appeal dismissed with costs.