Alfred v CFMEU (No 2)

Case [2011] FCA 557


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 24
Cases 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 cited
Date 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
Applicant

AND:

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

Alfred (No 2) involved a dispute between Alfred and the Construction, Forestry, Mining and Energy Union (CFMEU) in the Federal Court. The court was asked to determine the appropriate penalty for the CFMEU's contempt of court, stemming from their actions that contravened specific court orders. These actions were part of a larger course of conduct that had already been subject to a pecuniary penalty of $100,000 under the BCII Act. The court had to decide on the appropriate monetary penalty for contempt, taking into account the previous penalty and other relevant factors.

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

In Alfred (No 1) I imposed a pecuniary penalty of $100,000 on the CFMEU in respect of contraventions of the BCII Act. Those contraventions arose out of the same course of conduct which gave rise to the charges of contempt of court which I am presently considering. I accept the submission of the parties that it is relevant, in fixing a monetary penalty for contempt, to take account of this pecuniary penalty.CONCLUSION The declaration sought by the Applicant should be made. In all of the circumstances I consider that a fine of $150,000 should be imposed on the CFMEU for its contempt of paragraphs 1(a), 1(d) and 1(e) of the order made by this Court on 20 May 2010.

Ratio Decidendi

Legal Principle Established

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