Boral Resources (Vic) Pty Ltd v CFMEU

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 00928

BORAL RESOURCES (VIC) PTY LTD
(ACN 004 620 731) & ORS
Plaintiffs
V
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Defendant

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JUDGE:

DIGBY J

WHERE HELD:

Melbourne

DATE OF HEARING:

19 September 2013

DATE OF JUDGMENT:

28 October 2013

CASE MAY BE CITED AS:

Boral Resources (Vic) Pty Ltd & Ors v CFMEU

MEDIUM NEUTRAL CITATION:

[2013] VSC 572

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PROCEDURE – Contempt of court – Application for Supreme Court (General Civil Procedure) Rules 2005 (Rules), Order 9.06(2) - Application by Attorney-General for the State of Victoria to be joined to contempt proceedings – Application by Attorney-General to intervene in proceeding – Inherent jurisdiction - Underlying proceedings for contempt pursuant to Order 75 of the Rules – Consideration of discretion as to joinder – Scope of Rule 9.06(2) – Scope of inherent jurisdiction - Characterisation of underlying contempt – Civil or Criminal – Importance of distinction – Factors informing proper exercise of discretion – Section 22 Public Prosecutions Act (Vic) 1994.

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APPEARANCES:

Counsel Solicitors
For the Attorney-General Mr J B Davis with
Ms R N Sweet
Victorian Government Solicitor’s Office
For the Plaintiffs Mr J Snaden Fisher Cartwright Berriman Melbourne Pty Limited
For the Defendant Mr N Clelland SC with
Ms  R Shann
Slater & Gordon

HIS HONOUR:

Background

The underlying proceedings – the Boral Contempt Application

  1. By Summons filed 22 August 2013 (“the Contempt Summons”), the Plaintiffs seek orders that the Defendant, the Construction, Forestry, Mining and Energy Union (“CFMEU”), be punished for contempt pursuant to Order 75 of the Supreme Court (General Civil Procedure) Rules 2005 (Supreme Court Rules) (“the Boral Contempt Application”).

  1. The alleged contempts are said by the Plaintiffs to be constituted by the Defendant’s disobedience of orders of this Court made on 7 March 2013 and 5 April 2013.  The asserted disobedience relates to the alleged maintenance by the Defendant of a blockade to entry to a building site in contravention of court orders not to do so.  The alleged contempts also include allegations that the Defendant failed to comply with court ordered administrative requirements, including the filing of material.  The Plaintiffs’ Statement of Charges is set out in full below. 

  1. In this matter, the Attorney-General for the State of Victoria, who is not presently a party to the above proceedings, seeks to be joined as a party pursuant to rule 9.06(2) of the Supreme Court Rules.  Alternatively, the Attorney-General seeks leave to intervene in these proceedings pursuant to the court’s inherent jurisdiction to permit such intervention in appropriate circumstances.

The Attorney-General’s Joinder Summons

  1. The Attorney-General’s application to be joined, alternatively for leave to intervene, is made by Summons filed on 4 September 2013[1] (the “Joinder Summons”).  Pursuant to this summons the Attorney-General seeks:

(a)to be joined as a party to the Boral Contempt Application pursuant to rule 9.06(2) of the Supreme Court Rules; alternatively;

(b)leave to intervene in that application pursuant…

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Details
Case
[2013] VSC 572
Decision Date

CaseChat Overview and Summary

The case of Boral Resources (Vic) Pty Ltd v CFMEU concerns proceedings involving contempt of court. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The applicant, Boral Resources (Vic) Pty Ltd, sought to have the Attorney-General for the State of Victoria joined to contempt proceedings. The Attorney-General, in turn, sought to intervene in the proceeding. The legal issues at hand involved the interpretation and application of Order 9.06(2) of the Supreme Court (General Civil Procedure) Rules 2005, as well as the court's inherent jurisdiction in the matter. The primary focus was on the discretion of the court to join the Attorney-General to the contempt proceedings and the scope of the inherent jurisdiction in such cases.

The court examined the characterisation of the underlying contempt, which was crucial in determining the appropriate course of action. The distinction between civil and criminal contempt proceedings was significant, as it informed the exercise of the court's discretion. Factors considered by the court included the nature of the contempt, the role of the Attorney-General, and the relevance of Section 22 of the Public Prosecutions Act (Vic) 1994. The court determined that the contempt in question was of a civil nature, and therefore, the application for the Attorney-General to be joined to the proceedings was dismissed. The court also found that the inherent jurisdiction did not extend to allowing the Attorney-General to intervene in the matter.

The Court of Appeal upheld the decision of the trial judge, dismissing the application for the Attorney-General to be joined to the contempt proceedings and the application for the Attorney-General to intervene. The court found that the underlying contempt was of a civil nature, and the scope of the inherent jurisdiction did not extend to allowing the intervention of the Attorney-General. The court's discretion under Order 9.06(2) was properly exercised, and the application was dismissed. The final orders of the court reflected the decision, with the application for joinder and intervention being refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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