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Boral Resources (Vic) Pty Ltd v CFMEU

Boral Resources (Vic) Pty Ltd v CFMEU

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Case Copied 28 October 2013 66 min read

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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

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”).

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 572
Decision Date: 28 October 2013

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