Construction, Forestry, Mining & Energy Union & Anor v Cahill

[2010] HCATrans 324

[2010] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M85 of 2010

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Applicant

BOB MATES

Second Applicant

and

CHRIS CAHILL

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2010, AT 10.18 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR H. BORENSTEIN, SC, and MR C.W. DOWLING, for the applicants.  (instructed by Slater and Gordon)

MS R.M. DOYLE, SC:   If the Court pleases, I appear with MR M.L. FELMAN, for the respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, what we propose as being features of this case, a sentencing appeal, which would nonetheless fit it for a grant of special leave has to do with what this Court has recently described as the need for consistency in the application of relevant legal principles as being the consistency which is the hallmark of just sentencing.

FRENCH CJ:   Is that what this is about, a debate about application or a debate about principle?

MR WALKER:   It is a debate about principle but the application comes in this fashion.

CRENNAN J:   Are you saying there is an error in relation to principle in the Full Court’s majority?

MR WALKER:   Yes, the error is this, not in perceiving and, with respect, correctly, that their own decision in Williams adumbrated the approach correctly, but rather that this was what I might call colloquially a “take it or leave it” approach, not a principle which would therefore conduce to the achievement of consistency in the sense this Court described in Hili v Jones in the application of relevant principle.  Can I try and make good the way in which there is, unless this Court were to intervene, a degree of confusion introduced in relation to principle by going to the reasons in the Full Court?

CRENNAN J:   May I just clarify something?  I think the respondent says in the submissions that dealing with the totality principle by the primary judge was not challenged in the Full Court so that we are only talking about – we are not talking about the totality principle for these purposes, is that right?

MR WALKER:   Not quite, though the point made by our learned friends is, with respect, so far as we understand it, entirely correct.  It would be mentioned – it needs to be mentioned because the error that we seek to identify, the departure from the best way of achieving consistency is because the Bench says, in effect, if you so choose – if you so choose matters which could be dealt with by a “one course of conduct” approach can, and, if you have not done so under the one course of conduct, should be considered under a totality approach.  In our submission, therefore, the two come as a pair not because they should be seen as such but because – and wrongly, the majority in the Full Court approached it so.

FRENCH CJ:   Does that assume that the single course of conduct is one of a binary pair?  It either is or it is not, as distinct from a spectrum because I got the impression that the way things were fitted into the totality was about the relationship between at least the first two offences?

MR WALKER:   Yes.  Certainly we do not put, though we would go so far as to say the majority in the Full Court does put, the course of conduct and the totality principles as if they were two ways, more or less yoked together, you will choose one or the other to deal with that particular aspect of the sentencing task in a case which raises both of them.

CRENNAN J:   I think what they were getting at was that each of those principles, in a sense, is connected with the idea that a sentence should reflect the degree of criminality involved.

MR WALKER:   Quite so, though of course that is an idea which is by no means peculiar to those two.  That is an idea that pervades and must pervade – see Veen (No 2) – the whole approach to sentencing.  There are a number of metaphors that have been used in the discussion about these approaches.  They are inextricably mixed, we fear.  One is a tool of analysis and it is said that the course of conduct approach is a tool of analysis and we, taking up that metaphor say, yes, and where what is presented at the work bench is something which presents as possibly producing a single course of conduct it should not be a matter of choice for the Bench – idiosyncratic discretion it might be said – as to whether you apply that tool.

You do, and having analysed the facts appropriately, if you reach the conclusion that there is a single course of conduct informed by the principled explanation of the single course of conduct principle, which is care to avoid being sentenced for more than what one has really committed, notwithstanding that there are technically multiple offences then, in our submission, of its very nature that is a tool of analysis, to continue the usage, which will bring about compliance with the necessity to ensure that there is not sentencing which exceeds the criminality.

FRENCH CJ:   I suppose the concept, that metaphor, “tool of analysis” might be used to repel the proposition that it is somehow a subrule of the law that governs the imposition of the sentence?

MR WALKER:   Quite.  One thing is for sure that the word “rule” is more trouble than it is worth in this area, as is the word “guide”.  The one suffers from the vice of an apparent inflexibility which stands in uncomfortable contrast with statutory admonitions and the other, “guide”, has a similar vice in the opposite direction, namely, that it suggests that it is something from which one can depart, as it were, without a great deal of justification.

In our submission the law, particularly what I will call the common law of sentencing with statutory parameters, has a well‑recognised word without any of those vices and its principle.  Sentencing principles are an understandable body of judge‑made law and they have as their purpose, as the Court has recently said, to achieve that hallmark of justice which is called consistency in their application, not by some tabular or matrix form set of numbers.

CRENNAN J:   Of course, they are not inflexible, though, because you are dealing with a discretion.

MR WALKER:   Your Honour anticipates my next point.  Quite apart from what might be called the ultimate discretion, that is where there is evaluative assessment, having applied all the principles, and two sentencing judges could, without either of them being said to any degree being in error, reach different conclusions.  There are also along the way, and in a principle like the single course of conduct principle in particular, earlier evaluative assessments not properly called discretionary but still lending themselves to no uniquely correct outcomes where there have to be decisions by the sentencing court.

We do not, of course, take issue with any of that and so we do not suggest that there are anything like a set of detailed adjectival rules by which one must or must not mechanistically decide that this is or this is not a single course of conduct case.  There are judgments to be made with a range of possibilities with no uniquely correct answer.  We accept that.  What we submit, however, is that if a person up for sentence raises a single course of conduct argument “You should not sentence me to that which uncomfortably approaches, say, a maximum applicable to the worst case if I am not a worst case” and you only get that close to the maximum because there are technically three offences, that is the argument that a person convicted, or in this case a contravening civil penalty provision, is entitled to put. 

In our submission, the first of our special leave features, we submit, is that this Court should be asked to consider and should consider whether dealing with that kind of argument is appropriately done in some cases such as this by declining to do so by saying, “I wont do it as a single course of conduct case, I will do it as a totality case.”

That comes out not so much from the trial, the first instance decision making, as from the way in which the Full Court, as they put it, “more fundamentally” dealt with the matter.  That starts at page 65 of the application book in paragraph 38.  What their Honours in the majority described as the more fundamental approach identified what they called a misconception about the single course of conduct principle. 

Now, it is another of our features we put forward for special leave that there is immediately a reference to their own decision in Williams and I stress that if this present case remains as it is without a grant of special leave there is, in our submission, on the face of the two sets of reasons, real tension, (a) because Williams refers to the single course of conduct principle as one, as you would expect, that sentencing judges should observe and, (b), because in this case, which happens to include the same natural person as in Williams, another – a different case, the same person - in this case there is acknowledgement and, as it were, adoption of Williams without an explanation which is of much useful guidance in the future as to why the radical difference between the two when it comes to actually applying the principle.

CRENNAN J:   One answer to that, I suppose, is that the facts were quite distinct.

MR WALKER:   That I cannot qualify at all.  Yes, that is correct.  However, it may be that viewed at the level of principle the difference is more apparent than real in this sense.  In Williams those arguing for a single course of conduct had this head start that you could look to the particulars of the defences and say they all had the same date but it is worth pointing out that the stoppage in question continues to the next day. 

In this case we have a meeting and what might be called a continuation of the meeting, “Let’s talk more on the earliest following opportunity” and then the very next opportunity for there to be a stoppage, that is the next time when work is scheduled after a weekend there is the stoppage.  In each case there is threat and action and, in our submission, the integral connection between the threat of a stoppage and the action of inducing or procuring a stoppage have an obvious relation, one might say as obvious as the assault, as part of an assault and battery.

For those reasons, in our submission, there remains on the face of the reasons in this case of the majority in the Full Court an unexplained tension between the ready and prior application, anterior application of the single course of conduct analysis for failure of which in Williams they overturned the trial judge and in this case there is, in our submission, a clear statement commencing at paragraph 38, and going on in the fashion I am about to show, suggesting that the Court need not do it at all, if it so chooses.

FRENCH CJ:   The primary judge did not deal with the relationship between the offences solely under the heading of the totality principle, I do not think.

MR WALKER:   No ‑ ‑ ‑

FRENCH CJ:   I am looking at paragraph 74 where there is reference to the “common thread running through the offending conduct” which is to “be taken into account in fixing penalties”.

MR WALKER:   Quite.  That is the same paragraph, of course, against which we unsuccessfully appealed on the factual assessment involved.  At the top of page 26 there is a conclusion.  In our submission there was error there in the same way as there was on the somewhat different facts of Williams.  We do not say the totality principle and single course of conduct principle cannot, within their own proper spheres of operation, be referring to what I might call similar features of the case such as the guiding principle that there ought not to be sentencing in excess of what the criminality requires.

FRENCH CJ:   Between those two one might say, “Well, I am not prepared to treat these separate offences as a single course of conduct, but I will take into account that there is a connection between them”.  In other words, I am…..sort of a spectrum between the discrete characterisation of something, a single course of conduct as - undue characterisation as separate and unrelated offences.  The primary judge has done that, has he not?

MR WALKER:   That is right.

CRENNAN J:   The Full Court has dealt with that at paragraphs 43, 44 and 45 and in 45 picked up what the Chief Justice has adverted to.

MR WALKER:   Yes, and if I may say so, your Honour ‑ ‑ ‑

CRENNAN J:   In a sense, 43 and 44 allow one to understand the differences between this case and Williams’ Case.

MR WALKER:   With respect, your Honour, that is – I hope your Honour will not take this amiss, a subtle reading bearing in mind there is there no reference at all to Williams or to ‑ ‑ ‑

CRENNAN J:   I understand that, but if you know the facts of Williams’ Case you can see here that the Full Court has explained how the primary judge has gone very carefully through various considerations such as different dates and different participants and different contexts, but not regarding that as determinative and then going further.  In that sense you can easily appreciate the differences between the two in terms of application of principle.

MR WALKER:   Yes, your Honour.  As I say, there is a flying start, depending on which side of the argument, if you have them all on one date or you have none of them on the same date.  I accept that entirely, however, when one is talking about a threat of stoppage and a stoppage it is in the nature of things that you may be talking about the next shift or the next work day, for example, and that, in our submission, would ordinarily in such a case indicate that level of connection and interrelationship.

CRENNAN J:   On one view you are complaining about the application of well‑understood principles to the particular facts.

MR WALKER:   If that is where it rests, your Honours should not grant special leave because we obviously do not wish, to any degree, to weaken or detract from the clarity with which the single course of conduct principle in itself has been pronounced and I do not suggest there is any special leave attribute in relation to mere application of that.  If that is how it rests then the application should be dismissed.  However, we say what the Full Court has done is much more than that.

Justice Crennan has, with great respect, understandably invited me to look at the way in which the application of matters fell out, see paragraphs 43 to 45 of the Full Court.  There are intervening paragraphs - 40, 41 and 42 which in our submission throw up that which is apt for consideration by this Court.  The use of the comments by Justice Owen of the Western Australian Court of Appeal in Royer, quoted in paragraph 42, is in our submission a matter important for this Court to consider.  The notion of not being compelled to utilise a principle is perhaps a rather awkward one in terms of its expression.

FRENCH CJ:   That is not what Justice Owen said, is it?  It is rather a characterisation of what he said.

MR WALKER:   No.  That, in our submission, gives weight to this being a case apt for special leave because in this decision, following Williams, the majority of the Full Court has said, in our submission, that the court may choose whether to do it, that is to avoid sentencing in excess of what the occasion requires, may choose to do it by way of anterior resort to a single course of conduct or last resort to a totality principle.  In our submission,

the two are not of their nature able to meet in the middle so as to satisfy this Court that principle is being served.  The principle of single course of conduct exists and is called a principle because if it is faithfully followed in cases which call for its application it will avoid the vice of sentencing in excess.

Now, the same is obviously true of the totality principle but it comes from a different direction and comes from cases which do not lend themselves to a single course of conduct.  Why do they not lend themselves to a single course of conduct?  Because they are by definition cases where the sentencing court’s duty is to determine a sentence appropriate for each offence then to step back and to look at the totality and to ask the requisite questions.  It is for those reasons, in our submission, that they are chalk and cheese, they do not mix, they cannot be seen as alternative techniques which might at choice, mere choice, be applied to produce a uniformly satisfactory result, whichever one is employed.

Finally, another feature of this case which in our submission renders it most apt for special leave is this.  This is a civil penalty case, not a criminal case.  It may be taken that there is not doubt in the country that the single course of conduct approach applies to civil penalty.  It is true but it does raise the question for this Court as to whether, with the use of monetary penalties, what might be called fines in civil penalty cases, whether the same reasoning which applies in relation to what is very often imprisonment in crime should attract the same requirement in relation to the single course of conduct of principle, that requirement being if the case presents itself as one which requires an assessment as to whether there is really a single course of conduct should not that be the way in which, as a matter of principle, individual judges and sentencing courts will achieve that requisite consistency and application of principle by requiring that the principle always be applied in cases to which it is applicable, not leaving it open to a matter of choice which in our submission is the way in which the Full Court has done it.  May it please the Court.

FRENCH CJ:   Thank you.  We will not need to trouble you, Ms Doyle.

The applicants seek special leave to appeal against pecuniary penalties which were imposed on them by a judge of the Federal Court for three contraventions of section 43 of the Building and Construction Industry Improvement Act 2005. The applicants contend that the primary judge erred in her approach to determining whether the contraventions found should be treated as a single course of conduct for the purposes of penalty. The primary judge was also said to have erred by taking the connection between the contraventions into account, merely as part of an application of the totality principle. The special leave application is brought in respect of a decision of the Full Court which, by majority, upheld the primary judge.

In our opinion, no question of principle warranting the grant of special leave is demonstrated.  This case concerned the exercise of a discretion which required consideration of a range of factors, including the relationship between the contraventions.  The primary judge gave consideration to those matters.  Neither the primary judge, nor the Full Court is shown to have erred in their approach to the imposition of the penalty.  Special leave will be refused with costs.

AT 10.40 AM THE MATTER WAS CONCLUDED