Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0072

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION	Applicant
v
GROCON CONSTRUCTORS (VICTORIA) PTY LTD (ABN 98 148 006 624) and OTHERS (according to the Schedule attached)	Respondents

-and –

S APCI 2014 0040

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and OTHERS (according to the Schedule attached)	Appellants
v
GROCON CONSTRUCTORS (VICTORIA) PTY LTD (ABN 98 148 006 624) and OTHERS (according to the Schedule attached)	Respondents

-and –

S APCI 2014 0038

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION	Applicant
v
BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731) and OTHERS (according to the Schedule attached)	Respondents

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JUDGES:	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 and 28 July 2014
DATE OF JUDGMENT:	24 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 261
JUDGMENTS APPEALED FROM:	Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134 (Cavanough J) Boral Resources (Vic) Pty Ltd & Ors v CFMEU & Anor [2014] VSC 120 (Digby J)

- - - - -

Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (S APCR 2014 0072) and (S APCI 2014 0038)

CONTEMPT OF COURT – Industrial dispute – Preventing access to building sites – Restraining orders made – Alleged breaches of restraining orders – Proceeding alleging contempt of court initiated under Supreme Court (General Civil Procedure) Rules 2005 (r 75.06(2)) – Whether civil or criminal proceeding in circumstances of case.

CONTEMPT OF COURT – Finding made of breaches of restraining orders – Finding of criminal contempt – Criminal convictions recorded and fines imposed – Whether finding of criminal contempt available when charges did not plead contumacious conduct – Whether contumacy an element of criminal contempt or an aggravating circumstance – Nature of contempt – Effect of X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v The Queen (2014) 88 ALJR 656 – Whether contumacy must be pleaded in order that contempt for breach of Court orders be treated as criminal – Contumacy need not be pleaded – Sufficient that alleged contemnor put on notice that allegation of contumacy is made.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether trial judge erred in finding applicant had breached restraining orders – Terms of orders – Whether particulars of charges satisfied – Significance of redeployment of workers before relevant blockading conduct commenced – Not reasonably arguable that trial judge erred in findings of contempt.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether evidence to support findings of breaches to criminal standard – Not reasonably arguable that trial judge erred in so finding.

CRIMINAL LAW – Breaches of restraining orders – Finding of criminal contempt – Fine imposed – Whether fine in respect of breach disproportionate to fines imposed for other breaches – Not reasonably arguable that fine disproportionate.

Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (S APCI 2014 0040)

PRACTICE AND PROCEDURE – Discovery – Whether procedure under r 29.07 available against alleged contemnor in contempt proceedings brought under Supreme Court General Civil Procedure) Rules 2005 (r 75.06)(2)) – Proceeding alleging breaches of court orders – Nature of contempt alleged – Relevant evidentiary/procedural regime – Corporate defendant – Whether discovery unavailable by reason of contempt proceeding ‘criminal’ and ‘accusatorial’ – Leave to appeal against order for discovery refused.

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APPEARANCES:	Counsel	Solicitors
Grocon (S APCR 2014 0072)
For the Applicants	Mr P J Morrissey SC with Ms R Shann and Mr G Boas	Slater & Gordon Limited
For the Respondents	Mr M P McDonald SC with Mr P J Wheelahan	Herbert Smith Freehills
For the Attorney-General	Mr S J Wood QC with Mr E Gisonda and Mr B Jellis	Victorian Government Solicitor
Grocon (S APCI 2014 0040)
For the Appellant	Mr P J Morrissey SC with Ms R Shann and Mr G Boas	Slater & Gordon Limited
For the Respondent	Mr M P McDonald SC with Mr P J Wheelahan	Herbert Smith Freehills
For the Attorney-General	Mr S J Wood QC with Mr E Gisonda and Mr B Jellis	Victorian Government Solicitor
Boral (S APCI 2014 0038)
For the Applicant	Mr P J Morrissey SC with Ms R Shann and Mr G Boas	Slater & Gordon Limited
For the Respondents	Mr S J Wood QC with Mr J L Snaden and Mr D Ternovski	FCB Workplace Lawyers And Consultants
For the Attorney-General	Mr J B Davis with Ms R W Sweet	Victorian Government Solicitor

TABLE OF CONTENTS

The Grocon matter

The restraining orders

The contempt applications

Circumstances — the Emporium site

Circumstances — the McNab site

Finding of contempts

Conviction application — grounds

Sentence application — grounds

The Boral matter

Restraining orders

The contempt application

Circumstances

The A-G’s application to be joined

The application for discovery

The application for leave to appeal

Grocon sentence application — ground 3

The course of the proceedings at trial

Submissions on appeal

The state of the law before X7 and Lee

General observations
Distinguishing between civil and criminal contempt
The purpose of the proceeding — remedial/coercive in the private interest or punitive in the public interest
Procedural safeguards
Safeguards: what must be pleaded?
Conclusion regarding the law before X7 and Lee

X7 v Australian Crime Commission and Lee v The Queen

X7 v Australian Crime Commission
Lee v The Queen
Have X7 and Lee ‘altered the landscape’ as the Union contends?

Grocon conviction application — ground 1

Grocon conviction application — ground 2

Grocon sentence application — ground 5

The Boral matter — grounds 1–3

The Union’s submissions before this Court

Authorities relied upon by the Union

Australian Securities Investments Commission v Sigalla (No 4)
NSW Food Authority v Nutricia Australia Pty Ltd
Jones v Australian Competition and Consumer Commission
CFMEU v Director of Fair Work Building Industry Inspectorate

The submissions on behalf of Boral and the A-G

Authorities relied upon by Boral

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd
CFMEU v Boral Resources (Vic) Pty Ltd
Hinch v Attorney-General (Vic)
Rich v Attorney-General (Vic)
Environment Protection Authority v Caltex Refining Co Pty Ltd
The limits of Boral’s submission
Calderwood v SCI Operations Pty Ltd
Woods v Skyride Enterprises Pty Ltd

Submissions on behalf of the A-G

Conclusion re Boral matter

Orders

SCHEDULE

ASHLEY JA
REDLICH JA
WEINBERG JA:

Contempt of court has been described as ‘the Proteus of the legal world, assuming an almost infinite diversity of forms’.[1] Before the Court are three appellate proceedings (to use a neutral description) which illustrate the truth of that aphorism. They arise out of two matters heard and determined by judges in the Trial Division.
[1]Joseph Moskowitz, ‘Contempt of Injunctions, Civil and Criminal’ (1943) 43 Columbia Law Review 780, cited in C J Miller, Contempt of Court (Clarendon Press, 2^nd ed, 1989) 1.

In Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (‘the CFMEU’ or ‘the Union’, ‘Grocon’, and ‘the Grocon matter’), there are –

(1)A notice of appeal against judgment entered by a judge of the Trial Division on 31 March 2014. This appeal is brought in reliance upon s 10 of the Supreme Court Act and O 64 of ch 1 of the Supreme Court (General Civil Procedure) Rules2005 (‘ch 1’ or ‘the Rules’); and
(2)Notices of application for leave to appeal against conviction and sentence against the judgment entered on 31 March 2014, brought in reliance upon, respectively, ss 274 and 278 of the Criminal Procedure Act2009 (‘Criminal Procedure Act’).

The Union seeks to agitate four grounds. Two of them relate to it being adjudged guilty of particular contempts of court for breaches of court orders. Two relate to sentences imposed for those breaches and for other breaches of those orders. Under cover of sentence ground 3, the Union contends that the trial judge could not have found it guilty of criminal contempt for breaches of court orders, and could not have entered convictions for such breaches, unless the charges had pleaded – which they did not – that the breaches were contumacious. That was the principal issue argued on the appeal, which is not to say that the other grounds were not pressed with greater or lesser vigour, as the case may be.

In CFMEU v Boral Resources (Vic) Pty Ltd (‘Boral’ and ‘the Boral matter’), there is an application for leave to appeal (and, if leave is granted, an appeal) against an interlocutory order made by a judge in the Trial Division on 25 March 2014. This application is brought in reliance upon ss 10 and 17A(4)(b) of the Supreme Court Act 1986 (‘Supreme Court Act’), and O 64 of ch 1.

The Union seeks to challenge the order that it give specific discovery in a proceeding brought against it for contempt of court constituted by alleged breaches of court orders. The Union contends, principally, that the nature of contempt of court is that such an order could not have been made against it.

The appellate proceedings in the Grocon matter were initiated in the alternative. At the hearing, all parties — that is, the Union, Grocon and the Attorney-General for Victoria (‘the A-G’) — agreed that the correct vehicles for prosecuting the matter were the notices of application for leave to appeal against conviction and sentence (‘the conviction application’ and ‘the sentence application’). It was accepted that the Union was ‘a person convicted of an offence by an originating court’ within the meaning of s 274 of the Criminal Procedure Act, and ’a person sentenced for an offence by an originating court’ within s 278, which called into play so much of divs 1 and 2 of pt 6.3 of that Act as could be applied. For the reasons explained by Priest JA in Allen v The Queen,[2] the commonly agreed position was correct.
[2](2013) 36 VR 565, 569 [15]-[17] (‘Allen’). It matters not that Allen was a case in which there was summary adjudication of contempt.

The consequence of what we have just said is that the appeal which was commenced under O 64 was incompetent. It must be dismissed.

The application in the Boral matter is, as we have said, brought under O 64 of ch 1. The Union’s position is that, although the matter in which the judge’s order was made is to be characterised as a criminal proceeding, the Rules referable to applications for leave to appeal against interlocutory orders in civil proceedings have to be applied. That is because div 4 of pt 6.3 of the Criminal Procedure Act, which permits interlocutory appeals, is confined by s 295(1) of that Act to proceedings ‘for the prosecution of an indictable offence’. According to the CFMEU’s argument, s 10(1)(a) of the Supreme Court Act provides that the Court of Appeal has jurisdiction to hear and determine all appeals from a judge of the Trial Division. The consequence is that a vehicle for the appeal must be found. Absent the operation of the Criminal Procedure Act, ch 1 must be pressed into play. The possible alternative, that the logical extension of the Union’s position might dictate that there is simply no appeal from an interlocutory decision in a contempt matter, was comprehensively ignored.

It is convenient to mention here the position adopted by Boral and the A-G with respect to the procedure taken by the Union in the Boral matter. In short, they do not cavil with that procedure because in their submission the Rules, necessarily including O 64, prima facie apply in contempt matters.

The Grocon matter

It is now necessary to describe the proceedings which have given rise to the applications, and the grounds of application in each instance, in the Grocon matter.

The restraining orders

As at August 2012, there was what Cavanough J, the trial judge in the Grocon matter, accurately described as ‘a bitter, longstanding and highly prominent industrial dispute’ between the CFMEU and companies in the Grocon Group.[3] The parties had very different perceptions as to what the dispute was about. Those perceptions are presently immaterial.
[3]Grocon Constructors (Vic) Pty Ltd v CFMEU (No 2) [2014] VSC 134 [136] (‘Penalty Reasons’).

At this time, Grocon was undertaking construction work at two sites of present relevance.

The first was the Emporium site in Lonsdale Street, Melbourne. This site occupied much of the block between Swanston and Elizabeth Streets. It was bounded to the north by Lonsdale Street and to the south by Little Bourke Street.

The second was the McNab site in McNab Avenue, Footscray. This avenue is a no-thoroughfare. It can be approached from Napier Street or Nicholson Street, in each instance by passing through a roundabout.

On 21 August 2012, on the application of Grocon, Warren CJ made orders that:

2.Until the trial of this proceeding or further order, the Construction, Forestry, Mining and Energy Union (whether by itself, its officers, servants, agents or howsoever [or] otherwise) is restrained from:
(a)preventing, hindering or interfering with free access to, and free egress from, the building site occupied by each of the First Plaintiff or Second Plaintiff located at McNab Avenue, Footscray in the State of Victoria (McNab site) by any person or vehicle;
(b)…
(c)causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 2(a)-(b) of this order.

The CFMEU was on notice of the application for these orders, but did not attend court.

On 22 August 2012, Warren CJ, on the application of Grocon, made further orders. Relevantly, they were as follows:

3.Until 4.15 pm on 28 August 2012, the Construction, Forestry, Mining and Energy Union (whether by itself, its officers, servants, agents or howsoever or otherwise) and all persons who were on 22 August 2012 or are now, or have at any time since 22 August 2012 been present at the picket line at the Emporium site, are restrained from;
(a)preventing, hindering or interfering with free access to, and free egress from, the Emporium site by any person or vehicle; and
(b)…
(c)…; and
(d)causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 3(a)-(c) of this order.

The CFMEU was also on notice of the application for these orders. It did not attend court.

In each instance, the orders made by Warren CJ, as authenticated, contained a penal notice addressed to the CFMEU.

On 28 August 2012, Cavanough J made these orders:

3.Until the trial of this proceeding or further order, the CFMEU (whether by itself, its officers, servants, agents or howsoever or otherwise) is restrained from:
(a)preventing, hindering or interfering with free access to, and free egress from, the building site known as the “Emporium” site occupied by the third plaintiff at 269-321 Lonsdale St and located between Little Bourke Street and Lonsdale Street in the State of Victoria (“the Emporium Site”) by any person or vehicle;
(b)…
(c)…; and from
(d)causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 3(a)-(c) of this order.

This was another occasion upon which, although put on notice by Grocon, the CFMEU did not attend court.

The contempt applications

On 24 August 2012, Grocon filed and served an application by summons that the CFMEU be punished for contempt. As amended on 30 August 2012, then on 3 September 2012, the statement of charges read as follows:

10.In breach of paragraph 3(a) of the Order, prior to 4.15pm on 28 August 2012, the Defendant prevented free access to the Emporium Site by persons.

PARTICULARS
On 28 August 2012, during the period of approximately 6.30am to 11.00am, the Defendant by its officers Ralph Edwards, John Setka, Bill Oliver, Elias Spernovasilis, Derek Christopher, Shaun Reardon, Gareth Stephenson together with persons present outside Gate 1 of the Emporium Site prevented free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
11.In breach of paragraph 3(a) of the Order, prior to 4.15pm on 28 August 2012, the Defendant hindered free access to the Emporium Site by persons.

PARTICULARS
On 28 August 2012, during the period of approximately 6.30am to 11.00am the Defendant by its officers Ralph Edwards, John Setka, Bill Oliver, Elias Spernovasilis, Derek Christopher, Shaun Reardon, Gareth Stephenson together with persons present outside Gate 1 of the Emporium Site hindered free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
12.In breach of paragraph 3(a) of the Order, prior to 4.15pm on 28 August 2012, the Defendant interfered with free access to the Emporium Site by persons.

PARTICULARS
On 28 August 2012, during the period of approximately 6.30am to 11.00am the Defendant by its officers Ralph Edwards, John Setka, Bill Oliver, Elias Spernovasilis, Derek Christopher, Shaun Reardon, Gareth Stephenson together with persons present outside Gate 1 of the Emporium Site interfered with free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
13.In breach of paragraph 3(d) of the Order, after the Order was made but prior to 4.15pm on 28 August 2012, the Defendant caused persons to prevent free access to the Emporium Site by persons.

PARTICULARS
The Defendant caused persons to gather outside Gate 1 to the Emporium Site on 28 August 2012 during the period of approximately 6.30am to 11.00am and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
14.In breach of paragraph 3(d) of the Order, after the Order was made but prior to 4.15pm on 28 August 2012, the Defendant procured persons to prevent free access to the Emporium Site by persons.

PARTICULARS
The Defendant procured persons to gather outside Gate 1 to the Emporium Site on 28 August 2012 during the period of approximately 6.30am to 11.00am and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
15.In breach of paragraph 3(d) of the Order, prior to 4.15pm on 28 August 2012, the Defendant incited persons to prevent free access to the Emporium Site.

PARTICULARS
On 28 August 2012, at approximately 7.36am, the Defendant by its officer, Ralph Edwards, using a loudspeaker said words to the effect of “Back here again tomorrow boys for more fun” and did thereby incite persons to return to attend at Gate 1 of the Emporium Site on 29 August 2012 for the purpose of preventing access to the Emporium Site by persons engaged to work on the Emporium Site.

The application that the CFMEU be punished for contempt was heard by Cavanough J in the period 3 to 5 September 2012. The Union did not appear. His Honour reserved his decision.

On 7 September 2012, Grocon filed a further summons seeking that the CFMEU be punished for contempt. The summons contained 27 new charges, covering alleged conduct of the Union at the Emporium site on 29, 30 and 31 August 2012, and at the McNab site on 5 September 2012. We pause to note that the alleged breaching conduct at the McNab site on 5 September 2012 coincided with the final day of the hearing of the first contempt summons, a hearing not attended by the CFMEU.

The charges set out in both the first and second summonses followed a pattern with respect to the Emporium site. It is illustrated by the charges referable to 29 August 2012. Thus:

1.In breach of paragraphs 3(a) of the Order, on 29 August 2012 the Defendant prevented free access to the Emporium Site by persons.

PARTICULARS
On 29 August 2012, during the period of approximately 6.30am to 1.00pm, the Defendants by its officers Bill Oliver, John Setka, Shaun Reardon, Gareth Stephenson and Elias Spernovasilis together with persons proximate to the Emporium Site prevented free access to the Emporium Site by persons engaged to work on the Emporium site on that day.
2.In breach of paragraph 3(a) of the Order, on 29 August 2012 the Defendant hindered free access to the Emporium site by persons.

PARTICULARS
On 29 August 2012, during the period of approximately 6.30am to 1.00pm, the Defendant by its officers Bill Oliver, John Setka, Shaun Reardon, Gareth Stephenson and Elias Spernovasilis together with persons proximate to the Emporium Site hindered free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
3.In breach of paragraph 3(a) of the Order, on 29 August 2012 the Defendant interfered with free access to the Emporium Site by persons.

PARTICULARS
On 29 August 2012, during the period of approximately 6.30am to 1.00pm, the Defendant by its officers Bill Oliver, John Setka, Shaun Reardon, Gareth Stephenson and Elias Spernovasilis together with persons proximate to the Emporium Site interfered with free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
4.In breach of paragraph 3(d) of the Order, on 29 August 2012 the Defendant caused persons to prevent free access to the Emporium Site by persons.

PARTICULARS
The Defendant caused persons to gather proximate to the Emporium Site on 29 August 2012 during the period of approximately 6.30am to 1.00pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
5.In breach of paragraph 3(d) of the Order, on 29 August 2012 the Defendant procured persons to prevent free access to the Emporium Site by persons.

PARTICULARS
The Defendant procured persons to gather proximate to the Emporium Site on 29 August 2012 during the period of approximately 6.30am to 1.00pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
6.In breach of paragraph 3(d) of the Order, on 29 August 2012 the Defendant incited persons to prevent free access to the Emporium Site by persons.

PARTICULARS
The Defendant incited persons to gather proximate to the Emporium Site on 29 August 2012 during the period of approximately 6.30am to 1.00pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.[4]

[4](Emphasis added).

It can thus be seen that the charges mirrored the language of ‘preventing, hindering or interfering with’ free access to the site by persons set out in [3(a)] of the restraining order made on 28 August 2012; and also mirrored the language of ‘causing … procuring or inciting’ breaching conduct set out in [3(d)]. There was one charge per verb.

It may further be noted that the applications by which the charges were preferred were initiated by summonses in accordance with r 75.06(2) of ch 1 — that is, by a procedure under the civil rules. It has never been contended by the CFMEU that the charges were for that reason incompetent.

Of importance to the conviction application, pertaining to events at the Emporium site on 29 and 30 August 2012 (see ground 1 at [69] below), is the language of the particulars of obstruction of access. The issue sought to be relied upon is illustrated by the particulars of charge 1(a), the key parts of which we now highlight:

On 29 August 2012, during the period of approximately 6.30am to 1.00pm, the Defendants by its officers Bill Oliver, John Setka, Shaun Reardon, Gareth Stephenson and Elias Spernovasilis together with persons proximate to the Emporium Site prevented free access to the Emporium Site by persons engaged to work on the Emporium site on that day.

With respect to the McNab site, having regard to the way in which the matter proceeded, it is only necessary to refer to charges 22 to 27, which read as follows:

22.In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant prevented free access to the McNab Site by a vehicle.

PARTICULARS
On 5 September 2012, during the period of approximately 6.30am to 7.00am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site prevented free access to the McNab Site by a semi-trailer that was attempting to enter the McNab Site.
23.In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant hindered free access to the McNab Site by a vehicle.

PARTICULARS
On 5 September 2012, during the period of approximately 6.30am to 7.00am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site hindered free access to the McNab Site by a semi-trailer that was attempting to enter the McNab Site.
24.In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant interfered with free access to the McNab Site by a vehicle.

PARTICULARS
On 5 September 2012, during the period of approximately 6.30am to 7.00am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site interfered free [sic] access to the McNab Site by a semi-trailer that was attempting to enter the McNab Site.
25.In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant prevented free access to the McNab Site by a vehicle.

PARTICULARS
On 5 September 2012, at approximately 8.04am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site prevented free access to the McNab Site by a semi-trailer that was attempting to enter the McNab Site.
26.In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant hindered free access to the McNab Site by a vehicle.

PARTICULARS
On 5 September 2012, at approximately 8.04am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site hindered free access to the McNab Site by a semi-trailer that was attempting to enter the McNab Site.
27.In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant interfered with free access to the McNab Site by a vehicle.

PARTICULARS
On 5 September 2012, at approximately 8.04am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site interfered with free access to the McNab Site by a semi-trailer that was attempting to enter the McNab Site.

Again, the charges mirrored the verbs listed in [3(a)] of the restraining order made on 28 August 2012; but here the alleged interference was not with persons, but (on two separate occasions) with the passage of a vehicle.

Circumstances — the Emporium site

No challenge is raised by the conviction application to the facts found by Cavanough J with respect to what happened at the Emporium site. Ground 1, as will be seen, contends that his Honour’s findings of fact could not sustain a conclusion that the Union had committed contempts on 29 and 30 August 2012. But that ground turns only upon the language of the relevant charges.

What happened at the Emporium site can be briefly described. His Honour found that the Union, principally through the conduct of senior officials in the Victoria-Tasmania branch of its Construction and General Division, gathered together large numbers of men — many of them apparently connected with the Union — and located them in and around the Emporium site so as to prevent, hinder and interfere with free access by persons to the site for a period of hours on each of 28, 29, 30 and 31 August 2012. The officials involved were Ralph Edwards (‘Edwards’), John Setka (‘Setka’), Bill Oliver (‘Oliver’), Elias Spernovasilis (‘Spernovasilis’), Derek Christopher (‘Christopher’), Shaun Reardon (‘Reardon’), Frank O’Grady (‘O’Grady’) and Gareth Stephenson (‘Stephenson’). Others involved were David Noonan (‘Noonan’), Danny Baradi (‘Baradi’) and Craig Johnston (‘Johnston’).

At the pertinent time, Noonan was Divisional Secretary of the Construction and General Division. Edwards was Divisional Branch President. Oliver was Divisional Branch Secretary. Setka was Divisional Branch Assistant Secretary. Reardon and Spernovasilis were Divisional Branch Vice-Presidents. Christopher, Stephenson and Baradi were Divisional Branch Management Committee Members. Johnston was a Branch Council Member.

It was incontrovertible that the Union was in law responsible for the conduct of the officials mainly involved in the events which transpired.

The Emporium site covered a substantial area. It had a number of possible entry points. It is unnecessary to describe them, for the judge found that the conduct for which the Union was responsible interfered with free access to the site, and various arguments to the contrary advanced at trial can be put to one side.

What may be described as the main offending conduct took place in Lonsdale Street, which provided two access points to the site.

On the morning of 28 August 2012, a crowd which swelled to about 1,000 gathered in Lonsdale Street. The crowd completely blocked access to the site from the east, preventing entry by a group of some 115 Grocon workers. They never got beyond the intersection of Lonsdale and Swanston Streets. Police on horseback and foot were driven back into Swanston Street. Setka then approached the Grocon workers. He called them ‘rats’, ‘dogs’ and ‘fucking dogs’. When one of the workers said that they just wanted to go to work, he again called them ‘fucking dogs’.

Later that day, each of Edwards, Christopher and Oliver made it clear, by public statements, that the same activity would be repeated on the following day. So did the Union, by an article published on its website.

Late on the afternoon of 28 August, out of concern for the safety and welfare of its Emporium site workers, Grocon decided to deploy them, where possible, to other sites. The permanent workforce at the Emporium site, we interpolate, numbered some 85 to 90 persons. There were also about 25 management and staff.

The evidence did not reveal whether any, and if so how many workers were in fact re-deployed on 29 August.

On the morning of 29 August, a large crowd again assembled in Lonsdale Street. Even before the time when workers would normally have sought access to the site, the roadway was blocked, and there was no path through to the entry point at the north eastern part of the site.

Between 5.00pm and 5.30pm on 29 August, the Grocon workers who would otherwise have been working at the Emporium site the next day were instructed by telephone not to attend that site, but rather to attend other sites that next day. That instruction was given out of concern for the safety of the workers had they attempted to enter the site to work on the following day.

On 30 August, well before the time when workers would normally have arrived for their day’s work, a crowd of more than 1,000 persons had assembled in the vicinity of the north eastern entry point of the site. There was not, by reason of the crowd, a clear path to that entry point. Police were in attendance both to the east and west of the site in Lonsdale Street.

On 31 August, a group of about 30 Grocon workers was able to access the site, but only with the assistance of police. That was achieved despite the presence of some 800 to 1,000 protesters. A little after midday, the workers were escorted out. It was decided that no attempt would be made by Grocon workers to re-enter the site that day.

What we have said is sufficient to explain the broad character of what went on in the vicinity of the site on the days upon which the judge found that there had been a breach of the restraining orders. Because there is no occasion to do so, we need not detail the duration of the offending conduct on each day, or the repeated presence and prominent role assumed by of some the CFMEU officials — Setka, Reardon, Spernovasilis, Edwards and Oliver.

Circumstances — the McNab site

By ground 2 of the conviction application, as will be seen, the Union challenges his Honour’s finding that on 5 September 2012 it twice prevented, interfered with or hindered a truck from gaining free access to the McNab site.

At about 6.40am on 5 September 2012, a white semi-trailer approached the roundabout to which we referred at [14] above. To enter McNab Avenue, it had to negotiate that roundabout.

Grocon was expecting delivery of a load of reinforcing steel to the site by 7.00am that day.

At the time when the semi-trailer arrived at the roundabout, there were some 30 to 40 men in the vicinity, together with Setka and Reardon. There were also police officers present.

There was not enough room for the semi-trailer to enter McNab Avenue because of the presence of the men on the roadway.

The truck stopped. Reardon and Setka stood at the driver’s side door. What they said is unknown. In the event, the truck remained stationary for a period. Then it was driven away.

Whilst the truck was stopped, a utility vehicle entered the roundabout. Men stood in front of it, causing the driver to stop. They spoke to the driver. They then moved aside, and allowed it to pass. The evidence showed that it was travelling to a different site. A motorcycle travelling to another site was also permitted passage after the rider had been spoken to by the men.

Grocon’s site manager gave instructions for one of his foremen to arrange for the truck driver to ‘make a second attempt at delivering the reinforcing steel to the McNab site’. Whilst there was no evidence that such a call was made, the judge concluded that the same truck arrived back at the roundabout at a few minutes after 8.00am.

By that time, Setka and Reardon had departed. Before they did so, Reardon was seen to address the 30 to 40 men to whom we have referred.

When the truck arrived for the second time, its passage was blocked by a man standing in front of it. Some 15 men stood around and in front of it. A number of men approached the driver’s side door and apparently spoke to the driver. What any of them said is not known.

The driver got out of the truck. He was surrounded by some of the men.

Police officers approached the group, and separated the driver and the other men.

The men continued to block the truck’s access to the site. In time, the driver got back into the truck, and drove away.

Much of what we have described was demonstrated by CCTV footage which was before the judge, and which we have also viewed.

Finding of contempts

In all, as pressed by Grocon, 30 charges fell for consideration by the judge. Having regard to the fact that the CFMEU appeared to answer the charges raised by the second summons, his Honour decided, of his own motion, to re-open the first application. He decided also to hear the two applications together and that the evidence in one should be evidence in the other.

There followed a 10 day trial.[5] It concluded on 19 October 2012. Grocon adduced a great deal of evidence of different kinds — oral, electronic and documentary. The CFMEU called no witnesses. But it tendered three documents through Grocon witnesses, cross-examined two Grocon managers, and cross-examined two police witnesses whose roles had been referred to in affidavits filed for Grocon.
[5]The 10 days include 3, 4 and 5 September 2012.

His Honour concluded, to the criminal standard, that each of the 30 charges was made out. But he determined to record only five findings of contempt — one with respect to each of the four days at the Emporium site, and one with respect to the McNab site. He published reasons his Liability Reasons on 24 May 2013.[6]
[6]Grocon Constructors (Vic) Pty Ltd v CFMEU [2013] VSC 275 (‘Liability Reasons’).

Then, in the period 7 August 2013 to 25 February 2014, the judge dealt with two further contempts alleged against the Union — referable to activity at other sites at a later time, with the question of what penalties should be imposed for the various contempts, and with costs.

On 31 March 2014, his Honour published his Penalty Reasons. In consequence, he made, inter alia, the following orders:

(2)The first defendant (the CFMEU) is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Chief Justice Warren on 22 August 2012, the CFMEU did on 28 August 2012 prevent, hinder and interfere with free access to the building construction site located at 269-321 Lonsdale Street, Melbourne referred to in the order (“the Emporium site”) and did on that day incite persons to prevent access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(3)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 29 August 2012 prevent, hinder and interfere with free access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(4)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 30 August 2012 prevent, hinder and interfere with free access to the Emporium site by persons, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(5)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 31 August 2012 hinder and interfere with free access to the Emporium site by persons and did cause and procure persons to prevent free access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(6)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Chief Justice Warren on 21 August 2012, the CFMEU did on 5 September 2012 prevent, hinder and interfere with, on two occasions, free access by a vehicle to the site located at McNab Avenue, Footscray referred to in the order, and the CFMEU is convicted and fined $150,000 for that criminal contempt.[7]

[7][2014] VSC 134 [223].

We pause to note, in a preliminary way, these matters. They bear upon ground 3 of the sentence application.

First, the charges, as articulated, sought that the Union be punished for contempt, but did not allege that its conduct had been contumacious.

Second, the judge found in his Penalty Reasons that the Union’s conduct with respect to all five contempts of present relevance had been of that character.[8]
[8]In so finding, the judge applied the criminal standard of proof: Penalty Reasons [86]. The Union does not challenge the meaning of the word ‘contumacious’ which the judge gave it: Penalty Reasons [96]–[115]. Nor does the Union challenge his Honour’s conclusion (Penalty Reasons [130], [134], [147], [150]) that, so assessed, its conduct on the occasion of each contempt was contumacious (although, as will be seen, it challenges his Honour’s finding that - with respect to three of the five instances — contempt was made out).

Third, his Honour proceeded, in those circumstances, to impose convictions as well as fines. In his formal orders, in each instance he adjudged the Union ‘in criminal contempt of this Court’ and ‘convicted and fined [the Union] for that criminal contempt’. He explained why he imposed convictions as well as fines (the Union had accepted that substantial fines were appropriate having regard to the contempts found by his Honour) this way:

I regard these contempts as exceptionally serious. So much so that they warrant explicit classification as criminal contempts, perhaps for the first time in the Australian industrial context. I have already explained why I consider these contempts to be so serious. In short, they were highly contumacious. They were also highly visible and highly memorable. The Court must visit the defiance of the CFMEU with a penalty which will not only adequately respond to the scale of the defiance but also act as a general and specific deterrent. No fines of the level previously imposed could do that.
…
I can see absolutely no reason why my findings that the relevant contempts represent criminal contempts should not be translated into formal criminal convictions. I will order accordingly.[9]
[9]Penalty Reasons [201], [203].

Conviction application — grounds

The Union relies upon these grounds in its conviction application:

Liability for 29 & 30 August 2012
Ground 1 – His Honour erred in finding, as the Charges alleged, that the obstructive conduct, which occurred during the time-period pleaded, prevented (etc) free access to the site by “persons engaged to work on the Emporium site on that day”.
…
Liability for 5 September
Ground 2 – His Honour erred in finding that free access of the vehicle in question was prevented, hindered or interfered with by the CFMEU.

Ground 1 is directed to the contempts found against the Union relating to the Emporium site on 29 and 30 August 2012. The contention raised is that the particulars of the charges referable to those days were not satisfied because, in short, the Emporium site workers had been redeployed to other sites on those days, the redeployment being directed before the time at which the offending conduct on those days began.

Ground 2 relates to the contempts found against the Union relating to the McNab site on 5 September 2012. The gist of the contention is that the evidence was incapable of justifying a conclusion to the criminal standard that action by the Union prevented, interfered with or hindered free access of the vehicle to the site on either occasion. That was said to be the situation particularly on the second occasion — by which time, it will be recalled, Setka and Reardon had left the area.

The grounds show that there is no challenge to the findings of contempt on 28 and 31 August 2012 relating to the Emporium site. Neither — it flows from the grounds on the sentence application to which we refer hereafter — is there any challenge to the fines which the judge imposed for those contempts.

Sentence application — grounds

Two grounds were pursued on the sentence application:

Ground 3 – His Honour erred in finding that it was open to find the Contempts were criminal in circumstances where the Statement of Charges did not make such an allegation.
…
Ground 5 – His Honour erred by imposing penalties for the Fifth Contempts which were disproportionate to those imposed for the earlier contempts.

Ground 3 was much agitated. It was the centrepiece of the sentence application, and was indeed the principal issue raised overall in the Grocon matter. The gist of the Union’s contention was that, if Grocon had wished to have the Union punished for contumacious breach of the restraining orders, contumacy must have been alleged by the charges. The judge had not been entitled to find contumacy at the penalty stage, and then use that finding to hold that the Union had committed criminal contempts and so should be convicted as well as fined.

The consequence of the success of ground 3 would be, it was submitted, that the convictions should be set aside. It would have no bearing upon the fines which were imposed.

Ground 5, referable to the fine imposed for the contempts found against the Union relating to the McNab site, was scarcely pursued. As will be seen, it was faintly submitted that the ground would have some currency if the Court concluded that the first but not the second incident of interference with the passage of the truck had been sufficiently established.

The Boral matter
Restraining orders

Justice Hollingworth, in the Trial Division, made restraining orders relevant to this matter on 7 March and 5 April 2013. Paragraphs 4, 5 and 6 of Boral’s summons dated 22 August 2013, seeking that the Union be punished for contempt, referred to the March Order. But that order and those paragraphs are irrelevant for present purposes. It is only necessary to set out [2] and [3] of the April Order. They are as follows:

2.Until the trial of this proceeding or further order, the defendant (whether by itself, its officers, employees, agents or howsoever otherwise) be restrained from procuring, advising, persuading, encouraging, inciting or counselling – or threatening to so procure, advice, persuade, encourage or counsel – any person who is employed or engaged to perform work, at any location in Victoria, that involves, or would normally involve, working with products or services supplied by the plaintiffs (or any of them), to fail or refuse to perform that work, or to perform it otherwise than in the manner in which it would customarily be performed.
3.Until the trial of this proceeding or further order, the defendant (whether by itself, its officers, employees, agents or howsoever otherwise) be restrained from preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, the supply or possible supply of goods or services by the plaintiffs (or any of them) at any building or construction site in Victoria.

The contempt application

The application by summons, in accordance with r 75.06(2) of ch 1, was filed on 22 August 2013, seeking that the Union be punished for contempt of court. The pertinent charges were as follows:

1.In breach of paragraph 2 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the Regional Rail Link construction site at Joseph Street, Footscray, Victoria (RRL Site), procured the failure, by a person or persons engaged or employed to deliver concrete supplied by the first plaintiff to that site at or during that time, to perform that delivery work.
PARTICULARS
At the time and place alleged, the defendant – by its employee, Mr Joseph Myles – organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the corner of Joseph Road and Maribyrnong Street, Footscray so as to prevent, hinder or obstruct access to that site by concrete delivery vehicles; and, by so organising, implementing, participating in, constituting and maintaining, prevented persons who were engaged to deliver concrete supplied by the plaintiff to that site at the time or times over which that blockade remained in place (namely Mr Joe Faraci, Mr Nick Bouranis, Mr Cameron Powell and Mr Adam Farfalla) from performing that work, or otherwise caused them not to perform it.
2.In breach of paragraph 3 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the RRL Site, prevented the supply of concrete by the first plaintiff to that site.
PARTICULARS
At the time and place alleged, the defendant – by its employee, Mr Joseph Myles – organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the corner of Joseph Road and Maribyrnong Street, Footscray so as to render access to that site by concrete delivery vehicles impossible.
3.Alternatively to paragraph 2 above: in breach of paragraph 3 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the RRL Site, interfered with the supply of concrete by the first plaintiff to that site.
PARTICULARS
At the time and place alleged, the defendant — by its employee, Mr Joseph Myles — organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the corner of Joseph Road and Maribyrnong Street, Footscray so as to render free access to that site by concrete delivery vehicles impossible.

Each of the charges, referable to activity said to have been engaged in by the Union on 16 May 2013, alleged that it was activity ‘by its employee, Mr Joseph Myles’.

Circumstances

Justice Digby recorded the circumstances which gave rise to the discovery application this way (references to ‘the appellants’ are to Boral, to ‘the first respondent ‘are to the CFMEU, and to ‘the second respondent’ are to the A-G):

The [following] summary identifies the essence of the appellants’ case in this proceeding, as follows:
2.2      The Contempt Summons is filed pursuant to r 75.06 of the Rules. By it, the Appellants allege (as now does the Second Respondent), amongst other things, that the First Respondent, acting via its official, Mr Joseph Myles, contravened an injunction issued by Hollingworth J on 5 April 2013. It is alleged that Mr Myles established and maintained a blockade (comprised of vehicles and men) of a construction site at Joseph Road, Footscray, on 16 May 2013, thereby preventing the supply of concrete to that site by the first plaintiff. That construction site was for a project known as the Regional Rail Link project.
2.3      Mr Myles is an official of the CFMEU. He is also a ‘specialist’ ‘organiser’ apparently assigned by the First Respondent to work in connection with the Regional Rail Link project.
2.4      In order to succeed on the charges, the Appellants will need to establish either that the First Respondent authorised Mr Myles to engage in the conduct in which it is alleged that he engaged, or that it failed to take appropriate steps to prevent it — see: Evenco Pty Ltd v. Australian Building Construction Employees and Builders Labourers Federation (Qld Branch); and Grocon Constructors (Vic) Pty Ltd v. CFMEU.
2.5      The Appellants seek discovery of specific categories of documents that go to the question of Mr Myles’s authority to do as he did, on behalf of the First Respondent, on 16 May 2013. To understand how the documents are relevant, it is necessary to consider the affidavit material that the Appellants have filed in support of the contempt summons, particularly the affidavits of Acting Inspector Damien Jones and Sergeant Mark Anderson.
2.6      Acting Inspector Jones and Sergeant Anderson are police officers who attended at the Joseph Road site on 16 May 2013. They both spoke to Mr Myles about the blockade that was in place when they arrived. Sergeant Anderson, having been introduced to Mr Myles, asked whether he (Mr Myles) was ‘the main man’ in charge of the blockade, to which Mr Myles is said to have responded, ‘…I am just doing what I am told and following directions…I will be here until I am told otherwise. When we are told we can go home, we go home’.
2.7      Acting Inspector Jones and Sergeant Anderson depose that Acting Inspector Jones asked Mr Myles to permit worshippers from a nearby temple (who bore no apparent connection with the blockade or the reason for it) to pass through the blockade. Both depose that Mr Myles then walked away and spoke to somebody on his mobile telephone. He then returned and said that he would permit the worshippers to pass. Both Acting Inspector Jones and Sergeant Anderson then observed the blockading vehicles moving aside to permit the worshippers’ vehicles to pass.
2.8      The Appellants, then, seek orders requiring that the First Respondent discover contact details for members of the executive of the Victoria/Tasmania branch of its Construction and General division (the executive is, for all intents and purposes, the management body that runs that divisional branch). Documents so discovered will then be used, in conjunction with call record subpoenas to telecommunication carriers, to identify the person from whom Mr Myles apparently sought and obtained directions to permit worshippers to pass through the blockade.
2.9      The Appellants also seek orders requiring the First Respondent to discover documents containing the terms of Mr Myles’s employment. Those documents are also relevant to the scope of Mr Myles’s authority.
2.10     Both categories of documents are peculiarly within the knowledge of the First Respondent.[10]
[10]Boral Resources (Vic) Pty Ltd v CFMEU [2014] VSC 120 [8] (citations omitted) (emphasis in original).

The A-G’s application to be joined

Boral’s contempt application has been before this Court on an earlier occasion. What was said by the Court is of relevance to, but not determinative of,[11] the present application.
[11]It was not contended by any party that the Court’s earlier refusal of leave to appeal should be treated as authority upon a particular issue from which we would only depart if plainly satisfied that it was erroneous.

The A-G sought to be joined as a party to Boral’s application under r 9.06(b)(ii) of ch 1, or else to be granted leave to intervene. The Union resisted the joinder or the grant of leave to intervene. Justice Digby made an order for joinder under r 9.06 of ch 1.

In the course of his reasons, his Honour made observations as to the nature of the contempts alleged. They cast some light upon his characterisation of the contempts as ‘criminal contempts’ in the later discovery application. Thus:

I consider that because the contempt proceedings appear to be directed to a solely punitive purpose, given that the alleged blockade to which they principally relate has not apparently continued to affect the RRL project for many months, those alleged contempts are likely to be characterised as alleged criminal contempts being prosecuted by Boral to punish the CFMEU for past breaches.
However, it is not necessary for me to come to a final conclusion or make any finding as to the character of the alleged breaches given my reasons set out below for concluding that the Attorney-General should, in the special circumstances of this application, be joined to this proceeding, whether it be in the nature of a criminal or a civil contempt. Furthermore, I consider that, at all events, it is inappropriate that I do so at this stage of the proceedings informed by very limited evidentiary material as to the alleged contempts and also as to the purpose of the proceeding and indeed no evidence on those topics from the plaintiff Boral which is the party complaining of the contempts and also the party seeking to prosecute them. This is an interlocutory application for joinder. Accordingly, I do not intend at this stage to make any conclusive finding as to the nature of the alleged contempts.[12]

[12]Boral Resources (Vic) Pty Ltd v CFMEU [2013] VSC 572 [29]–[30].

The CFMEU sought leave to appeal against the order for joinder. There was a single proposed ground of appeal:

His Honour erred in finding that r 9.06(b)(ii) of the Supreme Court (General Civil Procedure) Rules2005, which provides for the addition of persons to proceedings for claims, permits a person to be joined to a proceeding for a charge of contempt pursuant to Order 75.[13]

[13]CFMEU v Boral Resources (Vic) Pty Ltd [2013] VSCA 378 [6].

As revealed by the reasons of this Court, the Union advanced two arguments in support of the application:

[T]he applicant contends that r 9.06(b)(ii) does not permit a person to be joined to a proceeding for a charge of contempt pursuant to Order 75 of the Rules. The applicant advances two arguments in support of this submission. First, the applicant contends that the contempts with which it is charged are criminal contempts, and then says that ‘civil procedure does not apply to criminal contempts’. Secondly, the applicant submits that regardless of whether the contempt is classified as civil or criminal, even if some rules of civil procedure apply, r 9.06(b)(ii) does not apply to contempt proceedings because r 9.06(b)(ii) only applies to proceedings for ‘claims’, as distinct from ‘a proceeding for a charge’.[14]

[14]Ibid [8].

The application for leave to appeal was refused. We will later refer to the reasons for that refusal in some detail. For the present, it suffices to say that the Court concluded that, prima facie, the civil rules apply to contempt applications, though it might be that not all of those rules are applicable. The Court refused the application on the basis that the judge’s decision was not attended by sufficient doubt to justify a grant of leave. The Court would also have refused leave on the ground of want of any relevant significant prejudice being demonstrated.

The application for discovery

By summons filed on 2 October 2013, Boral sought an order for specific discovery against the Union under r 29.07 of ch 1. The documents sought by way of discovery can be briefly summarised as follows:

(1)one copy of any business card issued by the Union for use by Joseph Myles; or alternatively, a copy of any one document recording the mobile telephone number of Myles as at 16 May 2013 or the present time;[15]
(2)the same with respect to each of Setka, Spernovasilis, Reardon, Edwards, Washington and Christopher; and
(3)documents confirming the basis or terms pursuant to which the Union employed Myles on 16 May 2013.

[15]That is, 2 October 2013.

On 23 October 2013, Daly AsJ dismissed the application. At the heart of her Honour’s decision was this reasoning:

(a)proceedings for punishment for contempt are criminal in nature, and the appropriate safeguards should apply;
(b)discovery is not available or appropriate in criminal proceedings;
(c)if there is any debate about whether a particular action for contempt is civil or criminal in nature, for the purposes of determining which evidentiary and/or procedural regimes apply, the current case is an action for criminal contempt, as the purpose of bringing the application is to punish the CFMEU for breaching the Orders, not to coerce CFMEU to obey the Orders, and there is no breach capable of remedy; and
(d)while EPA v Caltex is authority for the proposition that a corporation is not entitled to rely upon the privilege against self-incrimination in circumstances where compulsory disclosure of documents is authorised by a statutory provision, it is arguably not authority for the proposition that the court’s own rules and procedures can be utilised for the purpose of compelling a party, whether a corporation or otherwise, to disclose evidence which would expose that person to a penalty. Further, to the extent that Abbco Iceworks has determined that the privilege against self-exposure to a penalty does not extend to corporations, this decision is arguably limited to cases concerning civil actions for civil penalties.[16]

[16]Boral Resources (Vic) Pty Ltd Trading as Boral Concrete v CFMEU (Ruling, unreported, Supreme Court of Victoria, Daly AsJ, 23 October 2013) [26].

Boral appealed against that decision pursuant to r 77.06 of ch 1. It appears to have been uncontroversial that such a right of appeal existed — although, obviously enough, it involved recourse to the Rules.

Justice Digby set aside pertinent orders made by Daly AsJ, and in lieu thereof ordered specific discovery, as sought.

The Union’s ultimate position with respect to the application of the Rules was described by his Honour as follows:

During oral submissions Mr Morrissey SC clarified that the First Respondent’s contention was that although rule 1.05 is to the effect that all the Rules apply to every civil proceeding commenced in the Court (subject to the exceptions in Rule 1.05(2) which are not presently relevant), not all of the Rules are of appropriate application to criminal contempt proceedings instigated pursuant to Order 75. Rules which are not appropriate include the Rules which establish coercive mechanisms such as Orders 29, 30 and 31.

Senior Counsel for the First Respondent also advanced alternative arguments. First, that at its highest Order 29 was not available in respect of an Order 75 criminal or quasi-criminal contempt proceeding. Second, that in the circumstances, and in the exercise of the Court’s discretion, Order 29 should not be invoked in relation to a contempt proceeding such as this.[17]

[17]Boral Resources (Vic) Pty Ltd v CFMEU [2014] VSC 120 [31]–[32] (citations omitted).

Upon the general question whether the Rules applied to a proceeding brought under O 75, the judge concluded that:

In my view on the proper construction of the Rules, in particular given the terms of r 1.05 of the Rules and the location of Order 75 within the body of the Rules, a contempt proceeding initiated under Order 75 of the Rules is a proceeding in the civil jurisdiction of the Supreme Court and is governed by Chapter I of the Rules. Chapter I governs civil proceedings. This position is, however, subject to the exercise of the Court’s discretion in relation to the application of those rules in the particular circumstances of a proceeding. This interpretation of the Rules and this characterisation of the nature of the subject proceeding are supported by the High Court’s statements in Hinch and the Court of Appeal’s observations in Boral Resources.
A party charged with criminal contempt may be granted dispensation from some parts of the Rules to ensure there is no loss of relevant privileges and protections. Examples of such parts of the rules include rr 29.07(2), 30.02(3) and 31.12 (Order 31 is in any event also conditioned by the requirement for consent), which deal with discovery, interrogatories and oral examination, respectively. The application of each of these rules is subject to the Court’s discretionary power and the Court may decide not to apply such rules in an Order 75 contempt proceeding. For example, as observed by the Court of Appeal in Boral Resources, the Court’s powers to coerce discovery pursuant to Order 29 may not apply in a way which requires an individual to incriminate himself or herself in a contempt proceeding where the contempt alleged is of a criminal character.[18]

[18]Ibid [34]–[35] (citations omitted).

His Honour then considered whether r 29.07 applied to a contempt proceeding involving a corporate defendant; and whether discovery was otherwise unavailable by reason of the privilege against self-incrimination or against self-exposure to a penalty. He held that:

Although the learned Associate Judge was correct in characterising this proceeding as a ‘criminal contempt’, her Honour was not correct in her characterisation of this proceeding as ‘a criminal proceeding’. This error then led her Honour to wrongly conclude that the rules of procedure (and evidence) governing criminal proceedings apply and that the rules of civil procedure do not apply to this proceeding, save by clear implication for Order 75 which expressly founded the summons initiating the Contempt Proceeding.[19]

[19]Ibid [74].

The judge then adverted to s 187 of the Evidence Act2008 (‘Evidence Act’), and to authorities including Clarkson v Director of Public Prosecutions (Vic),[20] Environment Protection Authority v Caltex Refinery Company Pty Ltd,[21] Trade Practices Commission v Abbco Iceworks Pty Ltd,[22] Calderwood v SCI Operations Pty Ltd,[23] Bridal Fashions Pty Ltd v Comptroller - General of Customs,[24] Re Australian Property Custodian Holdings Ltd,[25] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[26] and WorkCover Authority of New South Wales v Crown in Right of New South Wales.[27] We mention the authorities to which his Honour referred because almost all of them were relied upon by one party or the other before us.
[20][1990] VR 745 (‘Clarkson’).
[21](1993) 178 CLR 477 (‘Caltex’).
[22](1994) 52 FCR 96 (‘Abbco Iceworks’).
[23](1995) 130 ALR 456 (‘Calderwood’).
[24](1996) 17 WAR 499.
[25](2012) 93 ACSR 130.
[26](2002) 213 CLR 543 (‘Daniels’).
[27](2000) 50 NSWLR 333.

After consideration of the legislation and the authorities, his Honour concluded that the r 29.07 procedure was not an inappropriate one in the present case. His final reasoning on that point is exposed at [111] of his judgment.[28]
[28]Boral Resources (Vic) Pty Ltd v CFMEU [2014] VSC 120 [111].

His Honour then considered whether, as a matter of discretion, he should make an order for specific discovery under r 29.07.

He concluded that the documents which were sought were relevant. There was no challenge in this Court to that conclusion.

His Honour further, and correctly, observed that ‘special circumstances’ must be established by the moving party before an order can be made under r 29.07. He then concluded, after very carefully identifying and weighing competing discretionary considerations, that not only had special circumstances been demonstrated, but also that it was appropriate and desirable that he exercise his discretion in favour of making the orders sought. This is what he said:

I consider that the following factors favour the exercise of discretion to order limited discovery in this proceeding:
(a)The extent of discovery sought is narrow and cannot be said to be in any way oppressive. The documents sought by [Boral] are copies of business cards issued by the CFMEU to any of seven persons, current as at 16 May 2013, alternatively a copy of one document that records the mobile telephone numbers of the same seven persons at either 16 May 2013 or the present time, and documents which confirm the basis or terms pursuant to which the CFMEU employed Mr Joseph Myles as at 16 May 2013;
(b)There is no real contest as to the learned Associate Judge’s finding that the discovery sought in the Discovery Summons is not “fishing”;
(d) [sic]It is accepted that the documents sought are relevant to the Contempt Proceeding;
(d)[Boral] argue, and the [CFMEU] does not contradict, that the documents sought are peculiarly within the knowledge of the CFMEU;
(e)As noted by the learned Associate Judge the Contempt Proceeding is not a proceeding where Boral elected to bring its claim other than by Writ, thereby putting itself in a position where it was not entitled to discovery, but rather is a proceeding brought appropriately under Order 75 as required by the Rules;
(f)For the reasons set out in (a)-(e) above, both individually and cumulatively, I support the learned Associate Judge’s conclusion that special circumstances exist which warrant an order for discovery under r 29.07 (2);
(g)The nature and extent of the apparent evidentiary issues is a factor which both supports the finding I have made that there are relevant “special circumstances” for the purposes of r 29.07(2) and is also a weighty factor militating in favour of the exercise of discretion to require the limited discovery sought. These evidentiary issues, described in the paragraphs below, arise in the case sought to be established by [Boral] against the [CFMEU]; and
(h)Relevant features of the case sought to be established by [Boral] against the [CFMEU] on the Contempt Summons:
(i)It is sufficiently clear in relation to the Contempt Summons that [Boral] acknowledge that in order to succeed in relation to those charges they pursue [Boral] will need to establish either that the CFMEU authorised Mr Myles to engage in the conduct in which it is alleged he engaged, or that the CFMEU failed to take appropriate steps to prevent such conduct.
(ii)Accordingly, the documents which [Boral] seek by way of limited discovery are documents going to the question of Mr Myles’s authority to do as he did, on behalf of the CFMEU, on 16 May 2013. On the above bases it is reasonable to conclude that [Boral] are likely to rely heavily on inferences to establish that Mr Myles acted with the authority of the [CFMEU], and to establish the content of the alleged telephone call on 16 May 2013 involving Mr Myles, and with whom [Mr] Myles spoke on that occasion.
(iii)[Boral] state in their submissions that they have issued subpoenas to various telecommunication companies in order to recover records that may assist in confirming aspects of the key mobile telephone call made by Mr Myles on 16 May 2013. [Boral] note that the subpoenas which they have issued are based on what [Boral] understand are the correct contact details for Mr Myles and executive members of the Victorian/Tasmanian branch of the CFMEU’s Construction and General Division. [Boral] further state that the information sought on discovery will in their view either confirm the accuracy of [Boral’s] information and serve as a basis for the admission into evidence of the records produced on subpoena. Alternatively, the information sought on discovery may confirm the inaccuracy of [Boral’s] information and allow [Boral] the opportunity to recover accurate, or relevant, records.
(iv)The [CFMEU] has made submissions in relation to possible difficulties concerning the admissibility and probative value of the documents which [Boral] seek to discover. In my view however the admissibility and probative value of the documents sought are potentially impacted by a number of factors which will not be clear until the point at which [Boral] seek to adduce and tender the relevant evidence in trial. The [CFMEU’s] submission on this aspect is therefore at the moment speculative, and should be given very little weight.
(v)The [CFMEU] also submits that the documents sought could not prove, or tend to prove, that the CFMEU, via any official, actually spoke to Mr Myles at the time in question; nor, the [CFMEU] submits, can the content of any such conversation be proved. However, at this stage of the proceeding I do not consider that I should ignore the prospect that [Boral] may be able to materially advance their case at trial by deploying the sorts of documents they press to be discovered. Indeed access to the documents sought may be the only way Boral can construct its case.
(vi)The nature of [Boral’s] case in the Contempt Proceeding renders the documents sought on the Discovery Summons of great potential significance because they may be pivotal to establishing that in the early afternoon of 16 May 2013 Mr Myles communicated by mobile phone with a person or persons of authority in the CFMEU. This, in turn, may also be of significance in relation to the inferences [Boral] may ask the Court to draw.
(vii)The evidence referred to discloses that Mr Myles, was described in the [CFMEU’s] own publications as a specialist organiser with responsibilities covering the subject construction site, was “following directions” from some person or persons and that he made at least one telephone call whilst at the alleged blockade. [Boral] assert that Mr Myles made the telephone call for the purposes of receiving instructions.
(viii)Accordingly, there can be little doubt that the documents [Boral] seek go to a live issue in the substantive proceeding, namely whether Mr Myles’s actions and conduct on 16 May 2013 were authorised by his employer, the [CFMEU]. For these reasons the discovery sought is potentially very important to the key issue to which I have referred. I ascribe great weight to this fact a factor militating in favour of exercising the Court’s discretion to order limited discovery.
(ix)I do not accept as weighty [Boral’s] submission that the absence of ancillary statutory powers of compulsion in relation to potentially relevant documents of the type which would be available to the police force and most regulatory authorities prosecuting an offence, is a factor militating in favour of the exercise of discretion to order discovery in this matter. If such a circumstance did justify the conclusion that special circumstances thereby existed, it could be anticipated that all normal applicants for discovery would make out such a special circumstance. Further, it would be an odd and unpredictable position if a party could contend that special circumstances existed because it did not have available to it powers or rights or entitlements which the law did not afford to them. Such a circumstance does not appear to be special but indeed the status quo and normal in that sense. At best I consider this factor, as such, adds very little to the force of [Boral’s] discovery application.

In my view, in this proceeding, the strongest argument in favour of discovery is that it is likely to promote the interests of justice, and in particular facilitate the ability of a party to call in aid processes which will assist the Court in identifying the true factual situation.
….
Further, I do not consider that discovery should not be ordered because the process of pre-trial discovery ordinarily entitles the parties involved to mutual discovery, and this feature of mutuality is not ordinarily able to be accommodated in quasi-criminal and criminal proceedings. Here the relevant framework is one which does not proceed on an assumption of “mutuality” because r 29.07(2) provides for the Court, in its discretion, to order a specific party to make discovery of documents. The rule itself does not, in terms, provide for mutual discovery by all parties.
….
I consider that the overarching public interest in the administration of justice, which requires that parties be given a fair trial on all the relevant and material evidence, heavily favours the exercise of the Court’s discretion to order discovery. In my view the likely prejudice to the fair and just determination of the matters at issue would be unacceptably high if the specific and limited discovery sought was denied to [Boral] in this proceeding. This is because of the nature of [Boral’s] case in this proceeding and the potential importance of the evidence sought by [Boral’s] application for discovery. I have detailed these considerations above.[29]
[29]Ibid [149]–[163] (citations omitted).

The application for leave to appeal

A summons seeking leave to appeal from the discovery orders was filed on 8 April 2014. A proposed notice of appeal is an exhibit to the affidavit of Bradley Colin Annson affirmed that day. There are three proposed grounds:

1.His Honour erred in finding that proceedings brought under Order 75 of the Rules, though constituting a criminal offence, are civil proceedings to which the rules of civil procedure apply, subject to the judge’s discretion not to apply an inappropriate procedure.
2.His Honour erred in finding that discovery pursuant to Order 29 of the Rules can be ordered against the defendant in a contempt proceeding commenced under Order 75 of the Rules, properly characterised as criminal in nature.
3.His Honour erred in finding that discovery pursuant to Order 29 of the Rules should be ordered in the current proceeding.

Although the Grocon and Boral matters involve quite separate breaches — in the case of the Boral matter, alleged breaches of court orders — and raise a number of different factual and legal questions, there are some features of each matter that give rise to common questions of law and principle. We refer, in particular, to the questions raised by ground 3 of the Grocon sentence application, and those that underlie grounds 1 and 2 of the Boral application.

We turn next to the principal issue raised in the Grocon sentence application which we briefly referred to at [74] above. We will deal with that matter first, before addressing the Grocon conviction application, because the grounds in support of that application were only faintly pressed in argument.

Grocon sentence application — ground 3

In the Grocon matter, with respect to ground 3, the gist of the CFMEU’s submission was that, because contempt proceedings arising out of a breach of court orders are today recognised as both criminal in nature and accusatorial, certain safeguards had to be followed. In particular, the Union submitted that it could not be exposed to the possibility of a conviction for criminal contempt without contumacy having been expressly pleaded in the charges brought by Grocon against it. It submitted that contumacy should be regarded as an element of the ‘offence’, and one that had to be specifically pleaded as such. As none of the charges brought against it had alleged contumacy, or by their terms otherwise made it clear that the contempt alleged was a criminal contempt, it had not been open to the Court to enter a ‘conviction’ for such contempt.

In the Boral matter, by way of anticipation, and to expose the common theme of the Union’s submissions, it was contended that because contempt proceedings arising out of breach of court orders are today recognised as both criminal in nature and accusatorial, the Union could not be required to give discovery of documents as might be required of it in a civil proceeding.

Counsel relied upon the same authorities to advance the submissions noted in the two preceding paragraphs. We must later say more about the detail of the Union’s submissions. But with respect to ground 3 of the Grocon sentence application, it can be said that they give rise to at least the following questions in the context of a contempt constituted by breach of court orders:

(i) Is contumacy an element of such a contempt in a case in which the circumstances would permit a finding of criminal contempt, or merely an aggravating circumstance?

(ii) Must contumacy be expressly pleaded in order that the contempt may be treated as criminal?

(iii) Can the purpose for which the plaintiff brings the contempt proceeding give the alleged contempt the character of a criminal contempt in the absence of contumacy?

(iv) May the court convict the contemnor of criminal contempt if it is not clear from the terms of the charge that a criminal contempt is alleged?

(v) Must it be made clear at the commencement of the hearing of a charge of contempt that the contempt alleged may be found to be a criminal contempt, or that the proceedings may be found to be only for the purpose of punishing the contemnor or that a finding of contumacious conduct may be made?

For the reasons set out below, we would answer those questions as follows.

(i) Although the authorities seem to suggest, on balance, that contumacy is not an element of a criminal contempt, it is unnecessary to express a concluded view regarding this matter.

(ii) No.

(iii) Yes.

(iv) Yes.

(v) In order to satisfy the requirements of procedural fairness, adequate notice of these potential consequences must be given.

The course of the proceedings at trial

Every appeal must have regard to the course of events at trial. In the present case, such regard shows very plainly that, from the time when the Union first appeared to answer the charges — (1) its legal advisers were absolutely clear that what was being alleged against it was a criminal contempt by reason of the circumstances in which the alleged breaches of the orders had been committed; (2) the judge and all counsel were alive to the fact that, in accordance with established practice, the question whether the Union’s conduct had been contumacious was a matter for determination only if and when the charges were found to be proven; (3) the Union contended that any allegation of contumacy had to be pleaded in the charge; and, as a corollary, that a finding of criminal contempt could not be made because contumacy had not been so pleaded. But it acknowledged that those submissions must fail on the weight of the then state of authority. What follows expands upon those propositions.

At the commencement of the hearing of the contempt proceedings before Cavanough J, and before the CFMEU had elected to appear, Grocon accepted as correct his Honour’s view that these were proceedings for ‘an offence’ within the meaning of the Evidence Act. His Honour expressed the view that as the Act distinguished between civil and criminal proceedings, the present application to have the CFMEU dealt with for contempt should be treated as a criminal proceeding.

Justice Gray understood that in each case the defendant had been charged with a criminal offence. Each defendant was a corporation. In each proceeding the prosecutor had served upon the defendant a notice requiring the defendant to give discovery of documents. In addition, the prosecutor had served upon each defendant a subpoena requiring specific documents to be produced in answer thereto. The defendants objected to each discovery notice and also sought an order that they not be obliged to comply with it. Each defendant also sought to have the subpoena served upon it set aside.

Justice Gray dismissed both sets of complaints. His Honour held that there was nothing on the face of the relevant rule to show that the word ‘party’ in that rule was to be construed as meaning only a party to a civil proceeding. Nor was there anything in the relevant rules that excluded a defendant in a criminal proceeding from being a proper subject of a subpoena for production. The fact that a corporation could not claim the privilege against self-incrimination, whether at common law, as a result of Caltex, or as a result of s 187 of the Evidence Act 1995 (Cth), provided support for the proposition that both discovery, and the subpoena for production, could be invoked to obtain the documents sought.

In arriving at that conclusion, Gray J was significantly influenced by the decision of the Full Court of the Federal Court in Abbco Iceworks,[349] to which the judge at first instance referred, and to which we have briefly adverted. His Honour specifically distinguished Noack v General Motors-Holdens Ltd,[350] where Forster J had held that discovery was not available against a prosecutor in criminal proceedings. In the course of doing so, Forster J referred to a long line of authority to the effect that discovery could never be invoked in any such proceedings.[351]
[349](1994) 52 FCR 96.
[350](1985) 11 FCR 122.
[351]The ‘long line of authority’ to which his Honour referred consisted of Lord Montague v Dudman (1751) 2 Ves Sen 396; Naismith v McGovern (1953) 90 CLR 336; Maddison v Goldrick [1975] 1 NSWLR 557, in all of which the point made was by way of dicta.

Justice Gray noted that in Sobh v Police Force of Victoria, Brooking J had carefully examined the various authorities dealing with discovery in criminal proceedings, and had said:

Neither the Crown nor the accused has the right to obtain production by the other for inspection of all documents relevant to the issues arising on a criminal trial. The exemption of the accused from any process of discovery is absolute. It flows from the privilege against self-incrimination…[352]

[352]Calderwood (1995) 130 ALR 456, 465, quoting Sobh v Police Force of Victoria [1994] 1 VR 41, 41 (‘Sobh’) (emphasis added).

Justice Gray, focussing upon the precise language used in that passage, noted that, having regard to the fact that the privilege was no longer available to corporations, Brooking J’s observation in Sobh might need to be reconsidered. His Honour concluded that corporate defendants had available to them sufficient safeguards under the accusatorial system, primarily through the fact that the onus of proof rested upon the prosecution in criminal cases. In relation to a corporation, from which the privileges against self-incrimination and self-exposure to a penalty had been removed, there was no particular reason why a prosecutor should not be able to use evidence supplied directly, albeit unwillingly, by the corporate defendant in order to discharge that onus of proof.

Woods v Skyride Enterprises Pty Ltd

A second case in which it had been held that discovery was available against a corporate defendant facing criminal charges was Woods v Skyride Enterprises Pty Ltd.[353] There E M Heenan J held that, as the corporate defendant could not claim either the privilege against self-incrimination, or the privilege against self-exposure to penalty, there was no reason why it should not be ordered to give, at least, specific discovery.
[353][2012] WASC 4 (‘Woods’).

Submissions on behalf of the A-G

Counsel for the A-G supported Boral’s submissions regarding discovery, but also added to them. He relied primarily upon a close textual analysis of the Rules. He argued that the starting point, when considering Boral’s application for specific discovery, was r 1.05. He submitted that a proceeding for contempt, of the kind instituted by Boral, should be regarded as a ‘civil proceeding’ for the purposes of the Rules. Accordingly, ch 1 of the Rules, in its entirety, governed all procedural aspects associated with the conduct of that proceeding.

It was readily conceded, on behalf of the A-G, that a contempt proceeding could not be viewed as a ‘civil proceeding’ for all purposes. It was plainly to be regarded as a criminal proceeding for the purposes of the appeal provisions contained in the Criminal Procedure Act.

Counsel accepted that a contempt proceeding did not fall within the definition of ‘civil proceeding’ in s 3 of the Civil Procedure Act. He accepted that for the purposes of that definition, a contempt proceeding should be viewed as being criminal in nature, or at the very least, ‘quasi-criminal’ within the meaning of that expression. It did not follow that a contempt proceeding was not to be regarded as a ‘civil proceeding’, at least for the purpose of the Rules.

Counsel for the A-G submitted that it was of some significance that the CFMEU had itself invoked the Rules, rather than any form of criminal procedure, in seeking leave to challenge the order for discovery made below.

Counsel next submitted, in response to questions from the Bench, that although the Boral matter was only concerned with the correctness or otherwise of an order for specific discovery, Digby J would have been entitled, had his Honour been asked to do so, to order general discovery.[354] He joined with counsel for Boral in submitting that his Honour would also have been entitled to permit Boral to administer interrogatories, and to require the Union to answer them.[355] He accepted, however, that a judge might, as a matter of discretion, be somewhat circumspect about permitting interrogatories, in particular, to be served.
[354]The Rules, r 29.11.
[355]The Rules, O 30.

Finally, counsel reminded the Court that the Boral matter involved an application for leave to appeal against an interlocutory decision, and not an appeal as of right. In accordance with established principle, leave to appeal should only be granted where the decision under challenge was wrong (or at least attended with sufficient doubt to justify granting leave) and substantial injustice would be done by permitting the decision to stand.[356] Moreover, the Union had to overcome at least one additional, and significant, hurdle. In so far as it sought to attack the exercise of the trial judge’s discretion in ordering specific discovery, it was obliged to bring its challenge within the principles laid down in House v The King.[357]
[356]Niemann v Electronic Industries Ltd [1978] VR 431, 433.
[357](1936) 55 CLR 499.

In that regard, it was submitted that Digby J’s decision was plainly correct. At the very least, it was not attended with sufficient doubt to justify granting leave. However, even if the Union overcame that hurdle, it would inevitably fall at the next. On no view could it be said that it would suffer substantial injustice if the order for specific discovery were permitted to stand. That was because the very documents that Boral sought could have been obtained by subpoena. Even if the Union succeeded in this appeal, Boral could still obtain those documents by the simple device of using that alterative mechanism.[358]

Conclusion re Boral matter

[358]Niemann v Electronic Industries Ltd [1978] VR 431.

In our view, there is no answer to the respondents’ submission that leave to appeal should be refused, at least on the basis that the Union will suffer no substantial injustice if the order for specific discovery is permitted to stand. The documents that Boral seeks include those recording the telephone numbers of certain CFMEU executives, and documents evincing the terms and conditions of employment of Mr Myles. There is no doubt that these documents are highly relevant. Of course, they are also potentially damaging to the Union’s defence.

However, it does not follow that permitting the order for specific discovery to stand will give rise to ‘substantial injustice’ to the Union. The question is not whether these documents may damage its case, but whether it would be unjust to allow Boral to gain access to them. It is at that point, at the very least, that the Union’s case falls away.

The documents in question could have been obtained by the simple device of issuing one or more subpoenas for production. That course remains open. Plainly, if there are no documents meeting the relevant description, there will be nothing for the Union to discover. The same will be true in answer to any subpoena. The fact that Boral chose, for whatever reason, to invoke one mechanism for discovery, rather than another, when both were equally available, does not entitle the Union to say, on an application for leave to appeal against an interlocutory order, that it will suffer substantial injustice unless the decision below is set aside. In truth, it will suffer no real injustice whatever.

Justice Digby was satisfied that there existed ‘special circumstances’ within the meaning of r 29.07 justifying the exercise of the Court’s discretion in favour of Boral. Certainly, that finding is not attended with sufficient doubt to justify granting leave to appeal. His Honour engaged in a meticulous analysis of the principles governing the exercise of the discretion, and his decision was, in that respect, unimpeachable.

That would be sufficient to dispose of this application. In deference to the extraordinarily detailed arguments put forward by all parties, however, and because of the importance of some of the issues raised, we consider it appropriate to set out our views on the merits of the case.

There can be no doubt that the law regarding what is still described as civil contempt is in an unsettled, and uncertain, state. Each side was able to call in aid a significant body of authority in support of its contention.

On behalf of the CFMEU, the cases relied upon included Witham, X7, Lee, Sigalla, Nutricia, and Fair Work Inspectorate. On the other hand, Boral and the A-G relied upon, Labrador, Hinch, Caltex, Daniels, Calderwood, Woods, Rich v A-G, Abbco Iceworks, Clarkson and CFMEU v Boral Resources (Vic) Pty Ltd.

In addition to the authorities upon which the parties specifically relied, there are other cases that bear upon the matters in dispute.

In Rich v Australian Securities and Investments Commission,[359] ASIC applied to the Supreme Court of New South Wales for declarations under the relevant provisions of the Corporations Act that two directors of a company, then in liquidation, had contravened s 180(1) of that Act. ASIC sought orders that the directors pay compensation to the company, and also that the directors be disqualified from managing a corporation for such period as the Court considered appropriate.
[359](2004) 220 CLR 129 (‘Rich v ASIC’).

Section 1317L of the Corporations Act required the Court to apply the rules of evidence and procedure for civil matters when hearing proceedings of this kind. The directors were ordered by a judge at first instance to make discovery of documents by verified list. The Court of Appeal upheld that decision, characterising the power to disqualify a director as ‘purely protective’ and not ‘punitive’. The High Court, by majority, reversed that decision. It held that the distinction between punitive and protective purposes was a false dichotomy, and that disqualification proceedings were, relevantly, to be classed as punitive. Accordingly, each director was entitled to invoke the privilege against penalty or forfeiture in order to avoid discovery. It would not have been sufficient, in order to give full effect to the privilege, to require them to make discovery and then object to the production of any given listed document. To approach the matter in that way might lead to the very mischief the privilege was designed to prevent.

The joint judgment of the majority had this to say:

Although the privilege against exposure to penalties had its origins in the rules of equity relating to discovery, when discovery and interrogatories were provided for under the rules made under the Judicature Act, the Court of Equity’s principle (that an order for discovery or for the administration of interrogatories in favour of the prosecutor, whether the prosecutor was the Crown or a common informer or some other person, should not be made where the proceeding was of such nature that it might result in a penalty or forfeiture) was applied more generally. As was further pointed out in the joint reasons in Daniels Corporation, the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings. In the present matter, however, the only issue is about the application of these privileges to discovery in judicial proceedings. No wider question arises.[360]

[360]Ibid 142 [24] (citations omitted).

Perhaps surprisingly, none of the judgments delivered in Rich v ASIC made any reference at all to Caltex. It is impossible, in those circumstances, to see the reasoning in Rich v ASIC as being in any way inconsistent or incompatible with Caltex.

It could, of course, be argued that Rich v ASIC lends some support to the Union’s opposition to having been required to give specific discovery to Boral. However, it must be remembered that that case concerned two individuals, each of whom was fully entitled to claim the privilege against self-incrimination. That stands in stark contrast to the Union’s position.

We should also refer to Re Application by Commissioner of the Australian Federal Police,[361] a judgment of Ginnane J. The question that arose was whether the Commissioner could obtain an order for discovery against an individual who was bound by a restraining order issued under the Proceeds of Crime Act 2002 (Cth) (‘Proceeds of Crime Act’), and who was seeking to have that order revoked. The property alleged to be the proceeds of crime was the sum of $4.3 million. That sum was contained in two bank accounts that the respondent, a Buddhist nun and president of a Buddhist temple in Malaysia, claimed to be her property.
[361][2013] VSC 686.

The Commissioner applied under r 6.093 of the Supreme Court (Criminal Procedure) Rules 2008 for orders for discovery. Justice Ginnane rejected that application. His Honour accepted that although the rules in question were designated as criminal procedure rules, proceedings concerning restraining orders were to be characterised as civil in nature. He noted that despite that characterisation, the provisions of the Civil Procedure Act had no application to the matter before him.[362]
[362]Civil Procedure Act, s 4(2)(d).

Justice Ginnane referred to Director of Public Prosecutions (Vic) v Thomas,[363] where Morris J had held that the court could require persons seeking to have their interest in a property excluded from a forfeiture order under the Confiscation Act 1997 to make discovery. Justice Ginnane accepted that he had the power to make an order for discovery in proceedings under the Proceeds of Crime Act, despite their quasi-criminal nature. However, his Honour observed that there were important qualifications to that statement. In exercising the power to give directions, the court might well decline to make an order for discovery, for instance, where the relevant legislation under which the proceeding was brought contained its own provisions enabling the Commissioner or an authorised officer to obtain documents compulsorily, by other means.
[363][2005] VSC 421.

Justice Ginnane’s reasoning is, to some extent, analogous to our own in so far as we have concluded that Boral’s ability, by other means, to obtain the specific documents sought, means that the Union will not suffer substantial injustice if the decision below is permitted to stand.

In summary, there is not a single case, among the vast array to which we were referred, and to which we ourselves have had regard, that is dispositive of the detailed arguments advanced by the parties. Indeed, it might also be said that none of those authorities are directly in point.

In our view, however, the respondents are correct in saying that Caltex presents a major, if not insuperable, obstacle to acceptance of the Union’s submissions.

Essentially, the Union relies upon the long-standing proposition that the civil rules for discovery have no application to criminal trials. It then moves from that proposition to a separate submission that those particular rules have no application to ‘criminal proceedings’. From there, it characterises contempt proceedings, where punishment is sought, as criminal proceedings. It relies in particular upon Witham, and its characterisation of civil contempt as effectively criminal in nature. The syllogism is then said to be complete.

The problem with all this is that a contempt proceeding cannot simply be characterised, for all purposes, as a criminal proceeding. Plainly, a description of that kind may be apt for some purposes, but that is not inevitably the case.

Putting authority to one side, it is clear that contempt proceedings are brought within the civil jurisdiction of the Court. At the very least, a number of the rules contained within ch 1 apply to such proceedings. Justice Hayne’s observations in Labrador are particularly apposite in this regard. Contempt proceedings, like those for pecuniary penalties in Customs Act matters, have a certain chameleon-like quality. They take their character from their surrounding circumstances, and the context within which the analysis proceeds.

We acknowledge that due weight should be accorded to Sigalla, where White J found that contempt proceedings were properly to be characterised not merely as ‘criminal in nature’, but also to be governed, wherever possible, by the rules that governed criminal procedure, and evidence in criminal proceedings. We note, however, that the issue in Sigalla was simply whether the consequence of making an unsuccessful no-case submission was loss of an automatic right to adduce evidence. As we have said, the case had nothing whatever to do with discovery, or any more substantive right than that.

As a matter of stare decisis, although not strictly bound by the decision of this Court in CFMEU v Boral Resources (Vic) Pty Ltd,[364] we should, of course, as a matter of comity, accord appropriate weight to the reasoning in that case.There, as we have said, the Court concluded that the Boral proceedings, though capable of being described as ‘criminal’ in relation to the contempt alleged, did not attract the criminal jurisdiction of the Court. Rather, they were governed by the civil jurisdiction, and the rules ordinarily applicable in that jurisdiction.
[364][2013] VSCA 378.

Justice Digby accepted that a party charged with criminal contempt might properly be granted dispensation from some parts of the Rules to ensure that that party’s rights were adequately protected. In his Honour’s view, the appropriate mechanism for safeguarding those rights was the sound exercise of judicial discretion.

It must be remembered, however, that the Boral matter does not concern the rights of an individual. It concerns, instead, allegations of contempt against a legal entity that cannot, in law, claim any privilege in answer to an order for discovery. It is not for this Court to question what the High Court has said in that regard, still less, what the Legislature has, as a matter of policy, chosen to enact.

It does not follow that companies, and other like entities charged with having committed criminal offences are to be treated less fairly, in other respects, than individual accused. Nor does it follow, however, that such bodies have the same entitlement to immunity from discovery that individuals traditionally have had, that entitlement being in part at least based upon the right to invoke the privilege against self-incrimination. In the end, the most potent safeguard against abuse in such cases may well lie in the sound exercise of judicial discretion.

We see no error in Digby J’s conclusion that the Associate Justice against whose decision the appeal was brought, was wrong to refuse specific discovery simply on the basis that this was a criminal proceeding, and therefore the Rules had no application. The Boral matter should not have been so characterised. Its actual status was more complex than that. Once her Honour had characterised the matter as she did, it was not at all surprising that she did not go on to consider whether, in the proper exercise of discretion, specific discovery should be ordered. Nonetheless, her failure to have done so meant that the discretion had to be exercised afresh, whether by Digby J, or on remitter.

Plainly, a number of the issues raised in this application involve matters as to which reasonable minds may differ. It has long been a truism that discovery is not available against an accused in a criminal proceeding.[365] Caltex, did, after all, represent a radical shift in the law as it had long been understood. Some of the implications of that decision are still to be fully grasped.
[365]Indeed, the CFMEU submitted that the converse was true. It cited R v Naramatsu Hamiguchi [1908] St R Qd 224 as well as Clarkson [1990] VR 745 for the proposition that discovery cannot be compelled in criminal proceedings.

It follows for the reasons set out above that the Union’s application for leave to appeal should be refused.

Orders

In the Grocon matter, we dismiss the notice of appeal commenced under O 64 of ch 1 of the Rules. In respect of the notices of application for leave against conviction and sentence brought in reliance upon ss 274 and 278 of the Criminal Procedure Act, we grant leave to the applicant to appeal on sentence ground 3, but dismiss the appeal. We refuse leave to appeal against conviction on grounds 1 and 2 and on sentence ground 5.

In the Boral matter, we refuse the application for leave to appeal.

- - - - -

SCHEDULE

Grocon (S APCR 2014 0072):

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant

- and -

GROCON CONSTRUCTORS (VICTORIA) PTY LTD (ABN 98 148 006 624)
First Respondent

GROCON (FCAD) PTY LTD (ACN 143 621 514) Second Respondent

GROCON CONSTRUCTORS (VIC) PTY LTD (ABN 88 127 996 436) Third Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA Fourth Respondent

Grocon (S APCI 2014 0040):

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant

(which is sued on its own behalf and pursuant to Order 18 of the Supreme Court (General Civil Procedure) Rules 2005 as representing:
a)all persons who were on 17 August 2012 or are now, or have at any time since 17 August 2012 been present at the picket lines at the premises of McNab Avenue, Footscray, in the State of Victoria;
b)all persons who were on 22 August 2012 or are now, or have at any time since 22 August 2012 been present at the picket lines at the premises of the Emporium construction site between Little Bourke St and Lonsdale Street, Melbourne, in the State of Victoria)

SHAUN REARDON Second Appellant

DEREK CHRISTOPHER Third Appellant

ELIAS SPERNOVASILIS Fourth Appellant

NOEL WASHINGTON Fifth Appellant

JOHN SETKA Sixth Appellant

BILL OLIVER Seventh Appellant

RALPH EDWARDS Eight Appellant

GARETH STEPHENSON Ninth Appellant

- and –

GROCON CONSTRUCTORS (VICTORIA) PTY LTD (ABN 98 148 006 624)
First Respondent

GROCON (FCAD) PTY LTD (ACN 143 621 514) Second Respondent

GROCON CONSTRUCTORS (VIC) PTY LTD (ABN 88 127 996 436) Third Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA Fourth Respondent

Boral (S APCI 2014 0038):

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant

- and -

BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731) First Respondent

ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999) Second Respondent

BORAL BRICKS PTY LTD (ACN 082 448 342) Third Respondent

BORAL MASONRY PTY LTD (ACN 000 223 718) Fourth Respondent

BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976) Fifth Respondent

BORAL WINDON SYSTEMS LTD (ACN 004 069 523) Sixth Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA Seventh Respondent

[2014] VSCA 261

24 October 2014