FEDERAL COURT OF AUSTRALIA
Alfred v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 557
Citation: Alfred v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 557 Parties: GREGORY ALFRED v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION File number: VID 390 of 2010 Judge: TRACEY J Date of judgment: 2 June 2011 Catchwords: CONTEMPT OF COURT – contempt of orders - considerations to be taken into account when fixing penalty Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Federal Court of Australia Act 1976 (Cth) s 31
High Court Rules 2004 (Cth) Rule 11.04.1
Judiciary Act 1903 (Cth) s 24Cases cited: Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556
Bovis Lend Lease Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 650 cited, applied
BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 cited
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64 cited
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350 discussed, applied
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 cited
Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754 referred to
Witham v Holloway (1995) 183 CLR 525 citedDate of hearing: 19 April 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Mr R Dalton Solicitor for the Applicant: Blake Dawson Counsel for the Respondent: Mr H Borenstein SC and Mr C Dowling Solicitor for the Respondent: Slater and Gordon
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 390 of 2010
BETWEEN: GREGORY ALFRED
ApplicantAND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
2 JUNE 2011
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
1. The respondent is guilty of contempt of paragraphs 1(a), 1(d) and 1(e) of the order of the Court made on 20 May 2010 during the period between 10:13 am on 21 May 2010 and about 1:38 pm on 28 May 2010, during which the respondent by itself, its officers, employees or agents did not refrain from preventing or hindering the access of any person or vehicle to the Melbourne Markets Relocation Project Site.
THE COURT ORDERS THAT:
2.A fine of $150,000 be imposed on the respondent for its contempt of the Order made on 20 May 2010.
3.The fine imposed in paragraph 2 of these orders be paid into the Consolidated Revenue Fund within 30 days of the date of these orders.
4.The respondent pay the applicant $150,000 by way of indemnity costs of the applicant’s motion for contempt, notice of which was given on 30 September 2010, within 30 days.
5.The applicant’s motion, notice of which was given on 30 September 2010, otherwise be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court…
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- AGLC
- Alfred v CFMEU (No 2) [2011] FCA 557
- Case
- [2011] FCA 557
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the appropriate penalty for the CFMEU's contempt of specific paragraphs of a previous court order, which directed them to refrain from hindering access to the Melbourne Markets Relocation Project Site. The court had to consider various factors in determining the penalty, including the nature of the contempt, the previous penalty imposed under the BCII Act, and any other relevant considerations. The court needed to balance the need to uphold the authority of the court against the potential deterrent effect of the penalty on future conduct.
In deciding the appropriate penalty, the court took into account the previous pecuniary penalty imposed on the CFMEU under the BCII Act, acknowledging its relevance. The court considered the severity and duration of the contempt, as well as the need to maintain the dignity and authority of the court. After weighing these factors, the court concluded that a fine of $150,000 was appropriate. The court also ordered the CFMEU to pay indemnity costs of $150,000 to the applicant and dismissed the applicant's motion in other respects.
The court's final orders declared the CFMEU guilty of contempt and imposed a fine of $150,000, which was to be paid within 30 days. Additionally, the CFMEU was ordered to pay the applicant $150,000 in indemnity costs within the same timeframe. The applicant's motion was dismissed in all other respects.
Orders
Orders of the court
1. The respondent is guilty of contempt of paragraphs 1(a), 1(d) and 1(e) of the order of the Court made on 20 May 2010 during the period between 10:13 am on 21 May 2010 and about 1:38 pm on 28 May 2010, during which the respondent by itself, its officers, employees or agents did not refrain from preventing or hindering the access of any person or vehicle to the Melbourne Markets Relocation Project Site.
THE COURT ORDERS THAT:
2. A fine of $150,000 be imposed on the respondent for its contempt of the Order made on 20 May 2010.
3. The fine imposed in paragraph 2 of these orders be paid into the Consolidated Revenue Fund within 30 days of the date of these orders.
4. The respondent pay the applicant $150,000 by way of indemnity costs of the applicant’s motion for contempt, notice of which was given on 30 September 2010, within 30 days.
5. The applicant’s motion, notice of which was given on 30 September 2010, otherwise be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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