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

[2013] VSC 275

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. SCI 2012 4743

BETWEEN

GROCON CONSTRUCTORS (VICTORIA) PTY LTD
(ABN 98 148 006 624) & ORS

Plaintiffs

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS

(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)

Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATES OF HEARING:	3, 4, 5, 13, 20, 26, 27 and 28 September, 18 and 19 October 2012
DATE OF JUDGMENT:	24 May 2013
CASE MAY BE CITED AS:	Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 275

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Contempt of Court – Alleged breach of temporary restraining orders – Meaning of orders and charges – Whether “free access” to building sites prevented, hindered or interfered with by large static groups of people – Whether defendant industrial association caused or procured the attendance or conduct of the groups of people – Charges established beyond reasonable doubt – Findings of contempt made – Supreme Court (General Civil Procedure) Rules 2005, Order 75

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APPEARANCES:	Counsel	Solicitors
For the first to third plaintiffs	Mr M McDonald SC, Mr P M O’Grady, Mr P Wheelahan	Herbert Smith Freehills
For the fourth plaintiff	Mr S Wood SC, Mr J Snaden, Mr B Jellis	Victorian Government Solicitor’s Office
For the first defendant	Mr P Morrissey SC, Ms R Shan	Slater and Gordon

HIS HONOUR

Introduction and overview

1. Before the Court are 30 charges[1] of alleged contempt of court against the first defendant, the Construction, Forestry, Mining and Energy Union (“the CFMEU”), which is an organisation registered under the Fair Work (Registration of Organisations) Act 2009 (Cth) (“the FW(RO) Act”).  In essence, it is alleged that on 28, 29, 30 and 31 August 2012 and on 5 September 2012 the CFMEU breached one or other of certain temporary restraining orders made by this Court on 21, 22 and 28 August 2012.  Notwithstanding that in the underlying proceeding the CFMEU is sued in a representative capacity as well as on its own behalf and notwithstanding that there are additional defendants in the underlying proceeding, the contempt charges are brought against the CFMEU alone and in its own right, not in any representative capacity.

   [1]Strictly speaking, there are 33 charges, but three of them are not pressed.  See below. 

1. The temporary restraining orders were obtained in the underlying proceeding by the first, second and third plaintiffs (collectively, “Grocon”), which are companies within the larger Grocon group of companies.  The Grocon group is in the business of large scale commercial building and construction.  Relevantly, the orders in question restrained the CFMEU from “preventing, hindering or interfering with free access to, and free egress from,” certain Grocon building sites by any person or vehicle; and from “causing, inducing, procuring or inciting any person to do or attempt to do” any of the things which the CFMEU was restrained from doing. 

1. The contempt charges are brought by way of two applications. Each application was commenced by Grocon, by summons filed under rule 75.06 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Supreme Court Rules”). The first application was commenced by a further amended summons filed on 30 August 2012. The second application was commenced by a summons filed on 7 September 2012. The Attorney-General for the State of Victoria has been joined as a fourth plaintiff in each of the two contempt applications. He is not otherwise a party to the underlying proceeding. Hereafter a reference to “the applicants” is a reference to Grocon and to the Attorney-General together as the moving parties in the contempt applications. Ultimately the two applications were heard together.

1. The first application comprises six charges, each relating exclusively to incidents said to have occurred in the vicinity of a Grocon building site known as the “Emporium” site in the Melbourne central business district on 28 August 2012.  The second application originally comprised 27 charges.  Eighteen of them – six per day – related to events at the Emporium site on 29, 30 and 31 August 2012 respectively.  The other nine charges related to events near a Grocon site known as the McNab site in Footscray on 5 September 2012.  Each of the building sites was covered by a temporary restraining order.  In the end, three of the nine McNab site charges have not been pressed.[2]  

   [2]The charges not pressed are those numbered 19, 20 and 21 in the summons filed on 7 September 2012.  The six remaining charges concerning the McNab site relate only to access by vehicles, as distinct from access by persons on foot, to the site.

1. As to the Emporium site, the applicants say in substance that large crowds of people, including several named officials of the CFMEU, gathered at the Emporium site on each of 28, 29, 30 and 31 August 2012; that, despite police involvement on 28 and 31 August 2012, the crowds blocked or restricted access by persons to the Emporium site on each of those four days;  that the CFMEU caused the crowds to gather for this purpose and/or directed the actions of the crowds after they had gathered;  and that the CFMEU thereby breached the orders.   

1. Notwithstanding that from time to time the applicants have described what happened at the Emporium site as a “blockade” (a description denied by the CFMEU), the charges actually laid in relation to the site are limited to charges of preventing (etc) free access to the site on the part of “persons” as distinct from “vehicles”.  In the particulars stated under each such charge, it is alleged that the CFMEU prevented etc free access to the site “by persons engaged to work on the Emporium site on that day”.  There is no charge of preventing (etc) free access to the Emporium site by vehicles. 

1. As for the McNab site, the applicants say in substance that on two separate occasions on the morning of 5 September 2012 two named officials of the CFMEU together with other persons proximate to the McNab site blocked or restricted the passage of a semi-trailer, alleged to be the same semi-trailer on both occasions, that was attempting to make a delivery to the site; and that the CFMEU thereby breached the relevant order on each occasion.

1. It is common ground that, in general terms, the elements of a civil contempt, ie a contempt constituted by breach of a court order, are as follows:[3]

(a)that an order was made by the court;

(b)that the terms of the order are clear, unambiguous and capable of compliance;

(c)that the order was served on the alleged contemnor or that service was excused in the circumstances or dispensed with pursuant to the Rules of Court;

(d)that the alleged contemnor has knowledge of the terms of the order;

(e)that the alleged contemnor has breached the terms of the order. 

[3]See Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31]; Scott v Evia Pty Ltd [2007] VSC 15 [36]; Deputy Commissioner for Taxation v Gashi (No 2) [2011] VSC 351 [18].

1. The first, third and fourth elements are not in dispute.

1. The CFMEU says that the second element is not in dispute either “so long as the plain and unambiguous sense of the Orders’ terms is adopted”.[4]  The CFMEU submits that the orders aim at actual prevention, hindering and interference with free access “as pleaded, in a concrete situation (and at procuring, causing or inciting such prevention)”.[5]  It submits that neither the orders nor the charges should be read in a ‘draconian’ way.  So far as the Emporium site in particular is concerned, it submits that the orders did not forbid mere presence and protest by the CFMEU nor require the CFMEU to furnish “in the abstract”, a clear path to the site.[6]  It submits that “free access” does not mean access without any encumbrance at all.  The applicants say that these submissions are misconceived.

   [4]CFMEU’s written closing submissions dated 15 October 2012, para 1.3.

   [5]Ibid, loc. cit.

   [6]Ibid, para 1.4.

1. The fifth element (breach) is in dispute.  The CFMEU denies that the applicants have proven, beyond reasonable doubt, any of the charges actually laid.  It says that each charge should be considered discretely.  As to the Emporium site, the CFMEU says that the applicants have not proven beyond reasonable doubt that free access to the site by persons engaged to work at the site on the relevant days was prevented, hindered or interfered with (within the meaning of the orders and the charges) by the crowds.  In that regard, the CFMEU contends that no specific request for access to the site was made on any of the days in question, whether by Grocon or by anybody else.  Further, the CFMEU says that there were several entrances to the site which were available but which Grocon workers did not use.  In relation to Wednesday 29 and Thursday 30 August 2012 in particular, the CFMEU points to evidence that the Grocon workers had been redeployed to other sites on the previous evening on each occasion, and it argues that, therefore, there were no persons “engaged to work on the Emporium site” (within the meaning of the relevant charges) on either of those days.  As to Friday 31 August 2012, the CFMEU points out that some Grocon workers did in fact enter the site on that day.  More generally, the CFMEU denies that the applicants have proven that the people in the crowds were assembled by, or were under the control or direction of, the CFMEU.

1. As to the McNab site, the CFMEU does not admit that it was the same semi-trailer on both occasions and, in any event, it contends that the evidence does not establish beyond reasonable doubt that access to the site by the semi-trailer or semi-trailers was prevented, hindered or interfered with (within the meaning of the orders and the charges) by the CFMEU.  Among other things, the CFMEU says that the evidence does not show why the semi-trailer or semi-trailers did not proceed to the site.

1. Although this is in form a civil proceeding, safeguards similar to those appropriate in criminal proceedings apply.[7]  Thus, as the applicants accept, the onus of proving a charge of contempt of court falls on the moving party, and such a charge must be proven beyond reasonable doubt.[8]  On the other hand, the distinction between civil and criminal contempt has not been entirely abolished and not all features of a criminal trial or of criminal procedure are applicable.[9] An obvious example is that allegations of contempt of this Court are not prosecuted before juries but rather are brought by way of the summary procedure provided for in Order 75 of Chapter I of the Supreme Court Rules. Generally speaking, Chapter I relates to civil, not criminal, procedure.

   [7]Doyle v Commonwealth (1985) 156 CLR 510, 516. See also and compare Briggs v Lunt (No 4) [2011] WASCA 145 [34]-[45].

   [8]Witham v Holloway (1995) 183 CLR 525; Sigalla v TZ [2011] NSWCA 334 [25]-]28].

   [9]See Hearne v Street (2008) 235 CLR 125, 131; Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 [37]-[67] (Tobias JA), [154] (Basten JA), [194]-[199] (Campbell JA); Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [63]-[104] (Beazley JA), [137] (McColl JA), [140], [166]-[174] (Lindgren AJA); cf Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117, 142-143 (Brooking JA); 172-173 (J.D. Phillips JA).

1. In my view, the two fundamental issues in this case are whether the persons in question obstructed access to the building sites on the days in question, and whether the CFMEU deliberately caused them to do so.  For reasons I will explain, I am satisfied beyond reasonable doubt that the answer in both cases is yes.  I am satisfied beyond reasonable doubt that all of the 30 (remaining) charges have been made out.  However, there is a great deal of overlap between them.  The applicants acknowledge that many of the 30 charges are in the nature of alternatives.  They submit that, in the end, there should be 10 separate findings of contempt.  In my view, having regard to the substance of the matter, only one finding of contempt per day is warranted.  That yields a total of 5 findings of contempt.  The applicants accept that any question of penalty must be deferred for further hearing and determination.

The procedural history and the restraining orders

1. On the afternoon of Friday 17 August 2012 counsel for Grocon made an oral application in the Practice Court (where I was sitting) for temporary injunctive relief against the CFMEU in relation to what was said to be an obstructive picket at the McNab site.  Grocon’s solicitors had previously given a short period of informal notice to the CFMEU, but the union did not appear and the matter proceeded as an urgent ex parte application.  Grocon proffered several undertakings, including an undertaking that, by the following Monday morning, Grocon would commence an appropriate proceeding by writ and would file a summons seeking interlocutory relief returnable on Tuesday 21 August 2012 in the Practice Court.  Having accepted Grocon’s undertakings, I made an order that until 4.15 pm on Tuesday 21 August 2012 or further order, the CFMEU be restraining from “preventing, hindering or interfering with free access to, and free egress from, [the McNab site] by any person or vehicle” and from “causing, inducing, procuring or inciting any person to do or attempt to do [any of those things]”. 

1. In accordance with their undertaking, Grocon caused a writ and a summons to be issued.  The writ commenced the underlying proceeding in which the present contempt applications were later made. 

1. The summons for interlocutory relief was called on in the Practice Court on Tuesday 21 August 2012 before her Honour the Chief Justice.  Despite prior notice, there was no appearance for the CFMEU.  Her Honour made an order that service of documents in the proceeding on the National Office of the CFMEU in West Melbourne would be good and sufficient service on the CFMEU. 

1. Her Honour made a further order in the following terms (so far as relevant):

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 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. 

1. As authenticated, the order contained a penal notice addressed to the CFMEU, being a notice warning that, among other things, the CFMEU was liable to sequestration of property if it disobeyed the order.

1. On 22 August 2012 Grocon applied to the Chief Justice, again on notice to the CFMEU, for further and wider restraining orders.  On this occasion Grocon alleged that there was an obstructive picket at the Emporium site.  Grocon also sought orders in respect of two additional building sites, known as “the 150 Collins Street site” and “the VCCC site” respectively.  Again the CFMEU did not appear.  Among other orders, the Chief Justice made interim restraining orders in relation to the Emporium site, the 150 Collins Street site and the VCCC site.  (As indicated above, an interlocutory restraining order in relation to the McNab site had already been made on 21 August 2012).  Relevant parts of the Chief Justice’s order of 22 August 2012 referred to “the picket line” at the Emporium site.  So far as directly relevant, paragraph 3 of the authenticated order was in the following terms:

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. 

Once again, the authenticated order contained a penal notice. 

1. On the morning of Friday 24 August 2012 Grocon issued a summons addressed to the CFMEU which was expressed to be returnable at 2.15 pm that same day. By the summons, Grocon sought an order pursuant to r 75.06 of the Supreme Court Rules that the CFMEU be punished for alleged contempt of court in relation to alleged breaches on 23 August 2012 of paragraph 4 of the Chief Justice’s order of 22 August 2012, being a paragraph to which I have not previously referred and which need not be set out. A statement of charge was included in a schedule to the summons. It contained 6 charges of alleged contempt. The summons came before the Chief Justice in the Practice Court. Once again, there was no appearance by the CFMEU. Grocon sought and obtained leave to amend the summons. Accordingly, that afternoon, Grocon filed an amended summons returnable in the Practice Court on Monday 27 August 2012. The amended summons included a statement of charge with 3 additional charges (which covered alleged events on the morning of 24 August 2012), making a total of 9 charges. Subsequently the hearing and determination of the amended summons was referred out of the Practice Court to me.

1. The amended summons duly came on before me for hearing on Monday 27 August 2012.  Although the CFMEU had been given prior notice of the application, once again it did not appear.  Counsel for Grocon sought to proceed with the charges.  I indicated that I saw various potential difficulties and problems in the application.  After a time, counsel for Grocon applied to adjourn the amended summons until Monday 3 September 2012 before me, and I made orders accordingly.

1. At 10.30 am on Tuesday 28 August 2012 the underlying proceeding came on before me on the return of the extant summons for interlocutory restraining orders in respect of the Emporium site, the 150 Collins Street site and the VCCC site.  Yet again, despite prior notice, there was no appearance by the CFMEU.  Earlier that morning certain relevant incidents had occurred in the vicinity of the Emporium site.  Grocon called two witnesses[10] to give oral evidence and to produce photographs relating to those incidents in supplementation of the affidavit evidence that was already before the Court.  (As explained below, I am proceeding on the basis that the evidence given by those two witnesses on 28 August 2012 is not before me for the purposes of the contempt applications.)  In substance, I granted the interlocutory relief sought by Grocon on that day.  The order was made after 12 noon. 

   [10]Mr Brian McAdam and Mr David Gray.

1. In the order which I made on 28 August 2012, as authenticated, the Construction, Forestry, Mining and Energy Union was defined as “CFMEU”.  In “other matters” it was recited that the order was made against the CFMEU in its own capacity alone, and not against the CFMEU in any representative capacity nor against any other person referred to in the heading to the order.  Paragraph 3 of the order imposed interlocutory restraints on the CFMEU in relation to the Emporium site and also in relation to the 150 Collins Street site and the VCCC site.  So far as directly relevant, paragraph 3 of the 28 August order was and is as follows:

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.

1. For reasons which will become apparent, paragraphs 4, 5 and 6 of the order should also be set out.  They read as follows:

4.      By 4 pm on 29 August 2012, the CFMEU must, in writing, direct each of the following of its employees or officers, namely Shaun Reardon, Derek Christopher, Elias Spernovasilis, Noel Washington and John Setka, that until the hearing and determination of this proceeding or further order of this Court, he must not:

(a)attend within 50m of any part of the building site occupied by each of the First Plaintiff or Second Plaintiff located at McNab Avenue, Footscray, in the State of Victoria;

(b)attend within 50m of any part of the Emporium site;

(c)attend within 50m of any part of the 150 Collins St Site;

(d)attend within 50m of any part of the VCCC Site.

5.      By 1pm on 30 August 2012, the CFMEU, by a duly authorised person, must file and serve on the solicitors for the plaintiffs an affidavit setting out the steps taken by the CFMEU to comply with paragraph 4 of this order.

6.      The plaintiffs are to serve a copy of this order on the CFMEU as soon as practicable.

The first contempt application

1. On Thursday 30 August 2012 Grocon filed a further amended version of its contempt summons.  The further amended summons was made returnable on Monday 3 September 2012.  In the statement of charge contained in the schedule to the summons, all 9 charges (numbered 1-9) which had been contained in the amended summons of 24 August 2012 and which had been brought before me on 27 August 2012 were ruled through and thus abandoned.  Replacing them were 6 new charges, numbered 10-15.  On the return date (3 September 2012), Grocon was given leave to amend the particulars subjoined to each of charges 10-14 so as to substitute the expression “11.00am” for the expression “8.00am” in each case.  As so amended, the first statement of charge now reads as follows[11]:

   [11]Because of the issues concerning interpretation and overlap, it is necessary to set out all of the charges in full. 

SCHEDULE

STATEMENT OF CHARGE

An order is sought that the Defendant be punished for its contempt in breaching the order of the Honourable Chief Justice Warren made 22 August 2012 (Order).

In this statement of charge “Emporium Site” means the building construction site located at 269-321 Lonsdale Street, Melbourne as referred to in the Order.

…

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 4.15 pm 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.

1. Despite having been served, the CFMEU did not appear on the return of Grocon’s further amended summons on 3 September 2012. On the other hand, the Attorney-General for Victoria appeared by counsel (pursuant to a summons filed earlier that day) and obtained an order that the Attorney-General be joined under r 9.06 of the Supreme Court Rules as the fourth plaintiff to the (first) contempt application.

1. The matter proceeded on 3, 4 and 5 September 2012.  Grocon called its evidence and made submissions.  The Attorney-General called no evidence and simply adopted Grocon’s submissions. 

1. On 4 September 2012 I acceded to an application by Grocon for an order joining eight named individuals (each said to be an officer of the CFMEU) as the second to ninth defendants to the underlying proceeding. However I reiterate that they are not respondents to the present contempt applications. The only respondent is the CFMEU.

1. At the end of the hearing on Wednesday 5 September 2012 I reserved my decision. 

The second contempt application

1. On Friday 7 September 2012 Grocon filed a second summons seeking an order that the CFMEU be punished for contempt (“the second contempt application”).  It was returnable on 17 September 2012.  As indicated above, it contained a statement of charge with 27 new charges concerning events at the Emporium site on 29, 30 and 31 August 2012 and events at the McNab site on 5 September 2012. The statement of charge attached to the second summons read as follows (omitting paragraphs 19-21 which contained the charges ultimately not pressed as mentioned above):

SCHEDULE

STATEMENT OF CHARGE

An order is sought that the First Defendant (referred to in this statement of charge as the “Defendant”) be punished for its contempt in breaching the order of the Honourable Justice Cavanough made 28 August 2012 (Order) and the order of the Honourable Chief Justice Warren made 21 August 2012 (McNab Site Order).

…

EMPORIUM SITE

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 6.30 am to 1.00 pm, 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 6.30 am to 1.00 pm 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 approximately6.30 am to 1.00pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.

7.In breach of paragraph 3(a) of the Order, on 30 August 2012 the Defendant prevented free access to the Emporium Site by persons.

PARTICULARS

On 30 August 2012, during the period of approximately 6.00am to 2.30pm, the Defendant by its officers Shaun Reardon, Bill Oliver, John Setka 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.

8.In breach of paragraph 3(a) of the Order, on 30 August 2012 the Defendant hindered free access to the Emporium Site by persons.

PARTICULARS

On 30 August 2012, during the period of approximately 6.00am to 2.30pm, the Defendant by its officers Shaun Reardon, Bill Oliver, John Setka 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.

9.In breach of paragraph 3(a) of the Order, on 30 August 2012 the Defendant interfered with free access to the Emporium Site by persons.

PARTICULARS

On 30 August 2012, during the period of approximately 6.00am to 2.30pm, the Defendant by its officers Shaun Reardon, Bill Oliver, John Setka 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.

10.In breach of paragraph 3(d) of the Order, on 30 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 30 August 2012 during the period of approximately 6.00am to 2.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.

11.In breach of paragraph 3(d) of the Order, on 30 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 30 August 2012 during the period of approximately 6.00am to 2.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.

12.In breach of paragraph 3(d) of the Order, on 30 August 2012 the Defendant incited persons to prevent free access to the Emporium Site.

PARTICULARS

The Defendant incited persons to gather proximate to the Emporium Site on 30 August 2012 during the period of approximately 6.00am to 2.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.

13.In breach of paragraph 3(a) of the Order, on 31 August 2012 the Defendant prevented free access to the Emporium Site by persons.

PARTICULARS

On 31 August 2012, during the period of approximately 5.15am to 1.30pm, the Defendant by its officers Ralph Edwards, Shaun Reardon, John Setka, Bill Oliver, Elias Spernovasilis and Frank O’Grady 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.

14.In breach of paragraph 3(a) of the Order, on 31 August 2012 the Defendant hindered free access to the Emporium Site by persons.

PARTICULARS

On 31 August 2012, during the period of approximately 5.15am to 1.30pm, the Defendant by its officers Ralph Edwards, Shaun Reardon, John Setka, Bill Oliver, Elias Spernovasilis and Frank O’Grady 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.

15.In breach of paragraph 3(a) of the Order, on 31 August 2012 the Defendant interfered with free access to the Emporium Site by persons.

PARTICULARS

On 31 August 2012, during the period of approximately 5.15am to 1.30pm, the Defendant by its officers Ralph Edwards, Shaun Reardon, John Setka, Bill Oliver, Elias Spernovasilis and Frank O’Grady 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.

16.In breach of paragraph 3(d) of the Order, on 31 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 31 August 2012 during the period of approximately 5.15am to 1.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.

17.In breach of paragraph 3(d) of the Order, on 31 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 31 August 2012 during the period of approximately 5.15am to 1.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.

18.In breach of paragraph 3(d) of the Order, on 31 August 2012 the Defendant incited persons to prevent free access to the Emporium Site.

PARTICULARS

The Defendant procured [sic] persons to gather proximate to the Emporium Site on 31 August 2012 during the period of approximately 5.15am to 1.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.

MCNAB SITE

…

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 6.30 am to 7.00 am, 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 free [sic] access to the McNab Site by a semi trailer that was attempting to enter the McNab Site.”

1. On 13 September 2012, pursuant to a summons filed by the Attorney-General on 10 September 2012, I ordered that the Attorney-General be joined, pursuant to r 9.06 of the Supreme Court Rules, as fourth plaintiff to the second contempt application.

1. On the same day, because of the obvious and extensive overlap between the two contempt applications, I ordered, of the Court’s own motion, that the hearing of the first contempt application be reopened and that the two applications be heard together.  I further ordered that the evidence adduced in each contempt application was to be taken to be also evidence in the other application.  The further hearing of the two applications was then fixed for 21 September 2012.

1. On 20 September 2012 the CFMEU filed an appearance in the underlying proceeding.  During the afternoon of that day Mr Morrissey SC contacted the Court on behalf of the CFMEU to request an urgent mention.[12]  The matter was brought on for mention accordingly.  The CFMEU sought an adjournment of the hearing scheduled for 21 September 2012.  Ultimately I granted an adjournment until 26 September 2012.

   [12]Prior to 20 September 2012, the only contact the CFMEU had made with the Court in relation to the proceeding had been an email of 30 August 2012 from one of its legal officers, Ms Kate Marshall, attaching an affidavit prepared by Mr Dave Noonan, Secretary of the National Construction Division of the CFMEU, in compliance with paragraph 5 of my order of 28 August 2012 (see above).

1. The hearing duly commenced on 26 September 2012 and continued on 27 and 28 September 2012.  Directions were then given for the filing of written submissions and the hearing of closing oral submissions.  The latter were heard on 18 and 19 October 2012. 

The scope of the evidence and other evidentiary points

1. A very large quantity of evidentiary material was tendered by Grocon.  It included the oral evidence heard on 3 and 4 September 2012[13], the oral evidence heard on 26 and 27 September 2012[14] and numerous affidavits.  The exhibits to the affidavits included various publications, maps, diagrams and photographs, as well as extensive video footage, including footage taken over 5 separate days by closed circuit television cameras at the two relevant building sites, video footage taken both by Grocon’s security staff and by officers of the Building Inspectorate of the Fair Work Building Commission of the Commonwealth, and also some mass media television footage downloaded from the internet.  The evidence tendered also included numerous still images taken from video footage.

   [13]On 5 September 2012 I made an order that any requirement that evidence in the first contempt application be given by affidavit be dispensed with nunc pro tunc in respect of the evidence given orally on 3 and 4 September 2012. That order referred specifically to the oral evidence given by Matthew Elija Tarpkos, Damian Cravino, Meredith Anne Knight, David Gray, Nikolce Popovski, John Van Camp, Ailsa Jane Carruthers and Brian McAdam on those days.  This was done out of caution, having regard in particular to rules 40.02 and 75.06 of the Supreme Court (General Civil Procedures) Rules 2005.  See Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (No 2) (1985) 9 FCR 194, 199, 226 and Deckers Outdoor Corporation Inc v Farley (No 6) [2010] FCA 391 [136] to [142] (Tracey J). The CFMEU takes no point about the order.

   [14]On 27 September 2012, by consent, I made an order similar to the order of 5 September 2012 (see above) regarding the oral evidence given on 26 and 27 September 2012.  That order referred specifically to the oral evidence given by Brian McAdam, Jamie Gilchrist Rigg and Ailsa Jane Carruthers on those days.

1. Certain parts of the affidavit material that had been relied on by Grocon during the hearings on and before 28 August 2012 were tendered afresh by Grocon in these contempt applications.

1. Much of the evidentiary material in these applications was hastily assembled at a time when, presumably, a purpose of the applications was to secure obedience to the interim and interlocutory orders.[15]  During the period in which the contempt applications were proceeding ex parte, and for some time thereafter, the Court was presented with a considerable task in trying to sort out the admissible from the inadmissible material.[16]  After the CFMEU appeared, their counsel raised or foreshadowed various objections to admissibility.  Ultimately, however, the parties arrived at a sensible agreed position in relation to the scope of the evidence to be admitted, including agreement as to the redaction of certain affidavits, as to the exclusion of certain other material and as to the admission of particular material for a limited purpose only.[17]  The CFMEU does not contest the authenticity or admissibility of any of the publications, maps, diagrams, photographs, video footage or still images, although it is agreed between the parties that none of the captions attached by Grocon (or their employees or agents) to the photographs or still images are part of the evidence.  Nor does the CFMEU contest the authenticity or admissibility of the mass media television footage, although it is agreed between the parties that none of the accompanying written or verbal commentary is part of the evidence.

   [15]There is no suggestion that the CFMEU has disobeyed any of the relevant restraining orders since 5 September 2012.

   [16]Of course the non-appearance of a defendant does not authorise reliance on inadmissible material.

   [17]See especially transcript (27 September 2012) 145-146, 186-188, 189-190; (28 September 2012) 193-199 (and the list of objections there referred to);  (18 October 2012) 333-336.  For transcript references in this judgment, it is unfortunately necessary to specify the hearing date on every occasion because the transcript page numbering commences several times. 

1. The CFMEU concedes that it was given notice in advance of all applications to the Court and that it also received timely notice of everything that had happened in Court on each relevant day from 17 August 2012 onwards.  It concedes the matters set out in the host of affidavits of service filed by the applicants, without requiring that the affidavits be treated as exhibits.  Indeed, it takes no point at all about service.[18] 

   [18]Transcript (19 October 2012) 372.

1. Apart from filing affidavits of service, the Attorney-General called no evidence at all.

1. The CFMEU did not call any witnesses.  However, through Grocon’s witness, Mr McAdam, it tendered three documentary exhibits.  Two were maps of the Emporium site as a whole.  The third was a group of photographs showing a wall and a door near the north-western corner of the site.

1. The CFMEU sought to cross-examine only two of Grocon’s several witnesses and deponents of affidavits, namely Brian McAdam and Jamie Rigg.  In addition, by arrangement between the parties, Grocon agreed to call two police officers whose roles had been referred to in affidavits, namely Senior Sergeant Jody Buckley and Sergeant Robert Thompson, principally with a view to their being cross-examined on behalf of the CFMEU.

1. The sheer bulk of the evidentiary material remains considerable.  For the sake of saving time in Court, quite a lot of it has had to be read or (in the case of the numerous computer disks and video recordings) viewed only after the conclusion of final submissions (as other commitments have allowed).  Grocon’s closing written submissions alone occupy 90 pages, with 222 paragraphs and 100 footnotes, and include evidentiary tables spread over 11 pages incorporating hundreds of references to transcript pages and exhibits.  The Attorney-General’s written submissions occupy a relatively modest 61 pages, but are adorned with 285 footnotes.  The CFMEU’s closing written submissions, including an addendum, occupy 25 pages altogether, with 60 footnotes.  Counsel spoke to their written submissions for a little over one day.  The legal representatives of all parties have done an enormous amount of high quality work, and I express my gratitude for that.

1. It was mentioned above that I am proceeding on the basis that the evidence that was given on 28 August 2012 by the two witnesses who were called by Grocon that day is not before me for the purposes of the contempt applications.  This needs explanation and some elaboration. 

1. One of the witnesses called on 28 August 2012 was the abovementioned Brian McAdam, who is employed by Grocon Pty Ltd, a member of the Grocon group, as Operations Manager, Victoria.  In that position McAdam manages operations for all Grocon building projects in Victoria, including construction operations at the Emporium and McNab sites.  The other witness was Mr David Gray, who is employed by Grocon as a security provider.

1. McAdam gave oral evidence about what he had observed earlier that same morning (Tuesday 28 August 2012) in relation to events at the Emporium site.  Mr Gray produced various videos and photographs taken that morning in the vicinity of the site.  All of that evidence was led by Mr North SC, who apparently held senior counsel’s brief for Grocon on the applications for interim and interlocutory restraining orders in the underlying proceeding.  As indicated above, the application on 28 August 2012 was for an order to extend until the trial of the underlying proceeding some of the interim restraining orders which had been made by the Chief Justice on 22 August 2012.  On the other hand, it seems that senior counsel’s brief for Grocon in relation to the contempt matters has at all relevant times been held by Mr McDonald SC.  In any event, during the initial hearing of the first contempt application on 3, 4 and 5 September 2012, although Grocon tendered 16 exhibits (exhibits P 1 to P 16), it did not tender or expressly seek to rely upon the evidence which had been given by McAdam or by Gray on 28 August 2012.  Indeed, although he noted that I had previously heard from McAdam,[19] Mr McDonald called both of those gentlemen afresh. He took McAdam through his recollection of the events of 28 August 2012 from the beginning. He also adduced evidence from Gray identifying afresh the videos and photographs which had been produced on 28 August 2012 (as well as adducing other evidence from him). Confirming my impression that no reliance was being placed by Grocon on any of the evidence that had been given by the two witnesses on 28 August 2012, Mr McDonald proceeded on 5 September 2012, as mentioned above,[20] to seek and obtain an order dispensing with any requirement under the Rules of Court that evidence in the first contempt application be given by affidavit in respect of the evidence given orally on 3 and 4 September 2012. The order, as sought and made, referred specifically to the evidence given by McAdam and Gray on 3 September 2012, but not to the evidence given by either of them on 28 August 2012.

   [19]Transcript (28 August 2012) 44.

   [20]See footnote 13.

1. This apparently clear picture was muddied somewhat by later events.  As indicated above, on 13 September 2012, after the commencement of the second contempt application, it was ordered that the first contempt application be reopened and that evidence in the one be also evidence in the other.  In support of the second contempt application Grocon filed an affidavit of McAdam which had been sworn on 6 September 2012.  Subsequently the CFMEU objected to paragraphs 19-26 thereof.  In effect, Grocon acceded to that objection.  Subject to that qualification, the affidavit was received as exhibit P 24.  However, in paragraph 17 of the affidavit, to which no objection was expressly taken, McAdam had said:

As to the events at the Emporium Site on the morning of 28 August 2012, I refer to and rely upon my oral evidence given before his Honour Justice Cavanough of the Supreme Court of Victoria on 28 August 2012.  I have set out some additional observations below. 

McAdam did not in this affidavit (or in any other affidavit filed in support of either contempt application) incorporate or otherwise refer to the (fresh) oral evidence which he had given on 3 September 2012.  However, one might think that, in his affidavit of 6 September 2012, McAdam must have been meaning to refer to that evidence, and that paragraph 17 must have been prepared in error.  Paragraph 17 was not expressly mentioned again during the hearing of the contempt applications, whether in evidence or in submissions.  On the other hand, buried within lengthy sets of tables subjoined to paragraphs 108, 137 and 146 respectively of Grocon’s closing written submissions dated 5 October 2012, there are references to several transcript pages of the hearing on 28 August 2012.  The transcript references include references to evidence given by both McAdam and Gray on that day.  By contrast, the written submissions of the Attorney-General (also dated 5 October 2012) make no mention at all of any evidence given on 28 August 2012. 

1. Generally speaking, as a matter of fairness and natural justice, it is important to be able to identify precisely the scope of the evidence that is before the court in any case, and all the more so in a case of alleged contempt.  Moreover, in the present case, the evidence given by McAdam on 28 August 2012 in respect of one particular topic, being a topic that later assumed some prominence in final submissions, was more extensive than the evidence which he later gave on that topic on 3 and 26 September 2012.  I refer to the question whether there were any and what joint plans of Grocon and the police as to the method by which Grocon’s employees might get to the Emporium site on the morning of 28 August 2012.  During final addresses, the CFMEU submitted that there was no evidence from McAdam or from anyone else to the effect that any such joint plans existed.  In their replies, neither Grocon nor the Attorney-General referred to what McAdam had said in this respect on 28 August 2012.[21]  The parties are not likely to have proceeded as they did in this regard in final addresses had any of them been treating McAdam’s evidence of 28 August 2012 as part of the evidence before the Court on the contempt applications.

   [21]Compare, especially, transcript (28 August 2012) 46, 49-50.  None of the 28 August 2012 transcript references contained in the tables to Grocon’s submissions pertained to this issue.

1. It is perhaps unfortunate that this evidentiary matter was not expressly cleared up during the hearing.  If, now, to exclude or disregard the evidence given on 28 August 2012 was going to affect my findings in this matter to the prejudice of any party, I would probably have relisted the matter to give the parties an opportunity to be heard on the point, despite the cost and inconvenience involved.  However, the CFMEU did not refer to or rely on any of the evidence given on 28 August 2012 for any purpose, and it could hardly be heard to say that it would be prejudiced by my excluding and disregarding that evidence.  On the other hand, as I will explain in due course, I am satisfied beyond reasonable doubt by the evidence that is undoubtedly before me, without more, that there was a joint Grocon/police plan to facilitate the passage of the relevant Grocon workers to the Emporium site on the morning of 28 August 2012.  Moreover, even if there were no such plan, I would remain satisfied beyond reasonable doubt that the CFMEU has breached the terms of the relevant orders as alleged in each charge.  Therefore, the applicants will not be prejudiced, either, if I put aside entirely the evidence given by McAdam (and Gray) on 28 August 2012.  Hence I have decided to proceed on the basis that none of the evidence adduced on 28 August 2012 is before me on the contempt applications.  I have disregarded that evidence completely.    

Fact-finding and circumstantial evidence

1. The applicants[22] submit that, as to inferences to be drawn from the evidence leading to the ultimate conclusions urged by the applicants, it is not the law that every piece of circumstantial evidence must of itself be proved beyond reasonable doubt.  They rely on the following passage in the leading judgment of Dawson J in Shepherd v R:[23]

As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt.  That means that the essential ingredients of each element must be so proved.  It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt.  Intent, for example, is, save for statutory exceptions, an element of every crime.  It is something which, apart from admissions, must be proved by inference.  But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided that they reach their conclusion upon the criminal standard of proof.  Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.

[22]The Attorney-General did not include any submissions about this topic in his written outline of submissions but Grocon did; and counsel for the Attorney-General, Mr Wood SC, at the outset of his final oral submissions, said that the Attorney-General adopted what Grocon had said, both in writing and as expanded upon orally, save for one unrelated matter: transcript (18 October 2012) 253.

[23](1990) 170 CLR 573, 579-580.

1. The applicants also rely on what was said by Callaway JA (with whom Phillips CJ agreed) in R v Kotzmann:[24]

Although Wigmore deprecated the utility of the metaphor to which Dawson J referred, it does helpfully describe two distinct kinds of reasoning.  Sometimes a jury is satisfied beyond reasonable doubt because of an accumulation of detail, especially an accumulation of detail bearing on a critical issue in the case.  The intention of the accused may, for example, be a critical issue and there may be six or seven facts which, taken together, establish beyond reasonable doubt what the accused’s intention was, even if none of those facts is itself established to the criminal standard.  We all reason like that in the common affairs of life; such reasoning is not confined to the jury room; the six or seven facts are aptly described as “strands in a cable” of proof.  There are other cases where sequential reasoning is necessary or appropriate.  Fact A may be probative of guilt only if fact B is true and fact B may be true only if fact C in turn is true.  If there is no other evidence bearing on a critical issue, each of those facts must be proved beyond reasonable doubt.  The jury cannot treat facts B and C as strands in a cable of proof. Each of them is an “indispensable link in a chain”.

It does not follow that, wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt.  The qualification, “[i]f there is no evidence bearing on a critical issue” is important.  A jury may be invited to conclude that the accused is guilty by reference to seven facts, one or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable.  If the judge said that one of the links in the chain establishing one of the seven facts did not need to be established beyond reasonable doubt, that would betray no error of logic.  The jury would consider that link in that chain only for the purpose of deciding whether one of the strands of the cable was present.  If it was, it would be part of the accumulation of detail.  If it was not, the other six facts might be sufficient on their own to satisfy the criminal standard of proof.

[24][1999] 2 VR 123, 129 [16]-[17].

1. The applicants also rely on Rogers v R[25] where Mandie JA referred to Shepherd v R in the following terms:

The jury was entitled to consider whether, and to conclude that, in the light of the whole of the evidence, an inference of guilt beyond reasonable doubt should be drawn from a combination of the facts, although no single one of them viewed in isolation would support that inference. [Here his Honour cited Chamberlin v R (No 2).[26]] The individual facts in the present case constitute what Dawson J referred to in Shepherd v R[27] as “strands in a cable” and, taken together, they are capable of leading to the inference beyond reasonable doubt that PR was the robber in each of the robberies.

[25][2011] VSCA 412 [38].

[26](1984) 153 CLR 514, 536.

[27](1990) 170 CLR 573, 579.

1. Finally, the applicants rely on what was said by Vincent and Nettle JJA and Vickery AJA in R v Cavkic (No 2):[28]

… whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt depends not only on the nature of the fact but upon the reasoning process by which that juror sees fit to reach his or her conclusion on the ultimate issue of guilt.  To repeat what was said by Dawson J in Shepherd[29], it is only where it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process toward an inference of guilt that the conclusion must be established beyond reasonable doubt. 

[28](2009) 28 VR 341 [105].

[29](1990) 170 CLR 573, 584-5.

1. In response, the CFMEU submits that the applicants explicitly rely upon “a circumstantial case” to “prove the elements of the charge”, noting that the applicants rely upon Shepherd v R[30] in that regard.[31]  However, it would be more accurate to say that the applicants rely partly on circumstantial evidence to prove one of the elements of each charge, namely that the CFMEU has breached the relevant order.  Indeed, in relation to that element, and particularly in relation to the issues arising thereunder as to whether free access to the relevant building sites was prevented, hindered or interfered with, the applicants rely principally if not exclusively on direct evidence of observations made by humans or by machines.  It is only, or mainly, in relation to the further issue arising thereunder as to whether any such prevention, etc is attributable to the CFMEU that the applicants resort to circumstantial evidence.  Even then, the applicants also rely on both direct evidence and alleged admissions in support of their case that the CFMEU caused or authorised the alleged prevention etc. 

   [30](1990) 170 CLR 573.

   [31]CFMEU’s written closing submissions dated 15 October 2012, para 4.2.

1. The CFMEU goes on to submit that it is not merely the elements of a charge which must be proved beyond reasonable doubt, but any fact indispensable to the applicants’ case.[32]  That much may be accepted.  However, the CFMEU goes too far in submitting, as it does, that:

Further, when relying upon inferential reasoning, the court should not act upon an inference unless it is the only reasonable inference available on the facts. [33]

This submission wrongly suggests that no inference at all – even as to a fact or matter of little importance – can be drawn unless it is the only inference reasonably available.  However, it is clear from the very cases upon which the CFMEU itself relies in this regard that that is not so.  Generally speaking, the requirement for proof beyond reasonable doubt applies only to a fact or conclusion (including an intermediate factual conclusion) that is an indispensable link in a chain of reasoning towards an inference of guilt.[34]  In Kotvas v R,[35] which was an appeal from the verdict of a jury, the case against the accused was circumstantial.  In that context, Redlich JA (with whom Maxwell P and Harper JA agreed) said that there may be some fact or piece of evidence on which the Crown relies which, although logically only a “strand in a cable”, is so influential that, standing alone, it should be treated as though it were an indispensable link in a chain of reasoning toward guilt, with the result that the trial judge should, as a matter of prudence, direct the jury that the fact or piece of evidence must be established to the criminal standard.[36]  In favour of the CFMEU, I will assume (without deciding), and proceed on the basis that, the superadded requirement (recognised in Kotvas) to be satisfied beyond reasonable doubt in respect of non-indispensable but particularly “influential” facts or pieces of evidence is as applicable in this summary proceeding as it would be in a jury trial.  However, beyond that, I do not accept the CFMEU’s proposition.

[32]Citing Shepherd v R (1990) 170 CLR 573, 581 (Dawson J).

[33]CFMEU’s written closing submissions dated 15 October 2012 para 4.2, citing Knight v The Queen (1992) 175 CLR 495;  Martin v Osborne (1936) 55 CLR 367; and Caswell v Powell Duffy Associated Collieries Ltd [1940] AC 152, 169. See also para 2.3 thereof, where Kotvas v R [2010] VSCA 309 is cited.

[34]See Shepherd v R (1990) 170 CLR 573, 579, 581 (Dawson J); Knight v R (1992) 175 CLR 495, 503 (Mason CJ, Dawson and Toohey JJ).

[35][2010] VSCA 309.

[36]At [24]-[27].

1. The CFMEU contends that there are several facts which are indispensable to the applicants’ case.  However, it gives only one alleged example.  It contends, in relation to each charge pertaining to the Emporium site except the charge of incitement, that the applicants must prove beyond reasonable doubt that the acts of the members of the crowd assembled at Gate 1 of the Emporium site were procured or caused by the CFMEU.  The applicants do not deny that they must prove beyond reasonable doubt that the conduct complained of is legally attributable to the CFMEU.  This is a matter to which I will return when I come to the parties’ final submissions, after I have set out my findings of primary fact (which are based essentially on direct observational evidence or on matters that are not in dispute).

The silence of the CFMEU

1. The applicants[37] accept that they bear the onus of proving the charges of contempt beyond reasonable doubt.  They accept that the fact that the CFMEU has not led evidence is not of itself evidence against the CFMEU, nor is it an admission of guilt by conduct.[38]  However, the applicants submit that the CFMEU is in a position to lead evidence of additional facts known only to it which, if they existed, would rebut the applicants’ claim that the CFMEU has acted in contempt.  They submit that only the CFMEU is capable of leading evidence that it:

(a)did not authorise the CFMEU officials to engage in conduct constituting a contempt;

(b)did not procure the attendance of a large number of individuals who attended the Emporium site on the mornings of 28, 29, 30 and 31 August 2012 and the McNab site on 5 September 2012;  and

(c)has taken steps to prevent the relevant conduct.[39]

The applicants submit that, in these circumstances, the failure of the CFMEU to lead evidence by way of explanation or answer to the charges of contempt, as might be expected if the truth of that evidence was consistent with innocence, is of evidentiary significance.[40]  For this proposition, the applicants cite two paragraphs from the judgment of Gaudron and McHugh JJ in Weissensteiner v R,[41] which they say was in turn cited with approval by the plurality in Azzopardi v The Queen.[42]  The applicants also cite a particular paragraph from RPS v R,[43] an additional paragraph from Azzopardi[44] and passages from the respective judgments of Maxwell P and Ashley JA in Butler v The Queen.[45]

[37]Once again, this is an area in relation to which only Grocon, not the Attorney-General, made express submissions.  However, as before, I take it that the Attorney-General has adopted the Grocon submissions relating to this matter, too.

[38]Grocon’s closing written submissions dated 5 October 2012, para 99, citing Azzopardi v The Queen (2001) 205 CLR 50 [34].

[39]Grocon’s written closing submissions dated 5 October 2012, para 99.

[40]Ibid, para 100.

[41](1993) 178 CLR 217 [245]-[246].

[42](2001} 205 CLR 50 [66].

[43](2000) 199 CLR 620 [27].

[44](2001) 205 CLR 50 [68].

[45][2011] VSCA 417 [24]-[33] (Maxwell P) and [142]-[143] (Ashley JA).

1. In response,[46] the CFMEU denies that its silence can be used against it in the ways contended for by the applicants.  It says, presumably on the basis that these contempt proceedings should be treated as the equivalent of criminal proceedings for this purpose (a proposition apparently not disputed by the applicants), that any room for using its silence against it is extremely limited in the circumstances of this case.  It is prepared to concede, in view of the strength and weight of the evidence against it on the particular topics of the terms of its rules and the identity of its officials, and the very nature of those topics, that its silence on them could appropriately be used against it (see further below).  However, beyond that, according to the CFMEU, this is not an exceptional case of the kind referred to in Weissensteiner, as that case was later explained in the joint judgment in RPS v R[47] and by Callinan J in Dyers v R.[48] 

   [46]See CFMEU’s closing written submissions dated 15 October 2012, para 19.1; CFMEU’s addendum thereto dated 17 October 2012, para 12; transcript (18 October 2012) esp 337-345.

   [47](2000) 199 CLR 620, 632-633 [27]-[29].

   [48](2002) 210 CLR 285, 327 [120]-[121] (Callinan J).

1. I am inclined to agree with the submissions of the CFMEU on this point, having regard in particular to the tenor of the observations made by the judges of the High Court who comprised the majority in Dyers v R[49].  However, I need not and do not decide this point finally, because I am satisfied beyond reasonable doubt that the CFMEU is guilty of each of the 30 (remaining) charges of contempt of court without my having relied on or taken into account in any way the CFMEU’s silence, save in the extremely limited respects (relating to the terms of its rules and the identity of its officials) acknowledged by its own counsel to be appropriate and further dealt with below. 

   [49](2002) 210 CLR 285, esp at 291 [5] and 292 [9]-[10] (Gaudron and Hayne JJ); 305-306 [52]-[53] (Kirby J); 326-328 [119]-[123] (Callinan J). See also Markisic v Keelty [2005] NSWSC 1124 [51] (Simpson J); compare Australian Prudential Regulation Authority v Siminton [2006] FCA 326, [24]-[30]. Both of these cases are referred to in my judgment in Livingspring Pty Ltd v Ng [2007] VSC 9, [79] (footnote 56). Compare also Bovis Lend Lease Pty Ltd v CFMEU (2009) 254 ALR 306, 321 [69].

Attaching liability for criminal conduct to an industrial association

1. Grocon’s final written submissions include a clear and comprehensive analysis of the legal principles concerning the attachment to a corporate entity, and in particular to an industrial association, of liability for criminal conduct.  The CFMEU takes no issue at all with this analysis.  I will treat it as correct.  I take the liberty of setting it out verbatim save that I have incorporated Grocon’s footnotes into this judgment and renumbered them (so as to continue the sequence of the footnotes to this judgment) and I have omitted the footnotes to the internal quote.  Grocon’s analysis is as follows:

   At common law, the test of attachment of criminal responsibility was neatly summarised by Brennan J in Environment Protection Authority v Caltex Refinery Co Pty Ltd, as follows:[50]

   A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities.  It cannot be subjected to the corporal penalties to which a natural person who offends against the criminal law can be subjected.  Yet it can be held criminally liable.  The weight of authority shows that, with some exceptions, a corporation may be criminally liable where the proscribed act done or the proscribed omission made by a corporation's officer or agent can be treated as having been done or made by the corporation with the mental state possessed by the person or persons who did or authorized the doing of the act or permitted the making of the omission, whether or not the officers or agents of the corporation are also liable.  There may be an alternative basis of a corporation’s criminal liability, namely, as an aider, abettor, counsellor or procurer of the offence committed by the human principal offender.  Whatever basis of liability is applied, criminal liability can be sheeted home to a corporation only upon proof that what is done or omitted to be done and the mental state with which the act was done or the omission was made are within the scope of the authority conferred by the corporation upon the person or persons on whose act, omission or state of mind the corporation’s criminal liability is said to depend.  The prosecution of a corporation thus requires proof of more than the conduct of particular natural persons which satisfies the elements of an offence.  Proof of those additional issues, linking the artificial entity with the relevant elements of the offence, often depends entirely or substantially on proof of documents in the corporation's possession or power.  Moreover, some offences arising from the creation of danger or a failure to exercise care may be caused by organizational defects provable only by production of corporate records.

   The weight of authority supports the view that in order to attach liability to a corporate entity for contempt, it must be shown that the corporate entity authorised the act complained of or failed to take proper steps to prevent the contemptuous conduct occurring.[51]

   As to the scope of authority conferred upon the individuals through whom the corporate entity acts, the following propositions arise from the authorities. 

   (a)To bind the industrial association, authorisation must come from the constitution, rules or membership of an industrial association, or alternatively later ratification of the conduct, or the receipt of some benefit from the conduct.[52]

   (b)The conduct need not be expressly authorised by the rules of the organisation.  Rules will not accommodate conduct contrary to law, but that does not mean that unlawful conduct cannot be attributed to the organisation.[53]

   (c)It is enough if the agent has authority to enter into transactions of the sort in question.  If so, the principal cannot say that the agent acted wrongfully.[54]  Once authority to engage in certain tasks is proved, vicarious liability extends to unauthorised modes of performing those tasks.  If it is sought to be proved that the employer is liable because it failed to take proper steps to prevent the acts complained of, it must be shown that there were circumstances which required the employer to take the steps and that the steps, if any, taken by the employer were sufficient to avoid vicarious liability.[55]

   [50](1993) 178 CLR 477, 514.2 to 515.2.

   [51]Evenco Pty Ltd v Australasian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118 [27] (Pincus J, dissenting), a view which was approved by the Full Court of the Federal Court of Australia in Hanley v AFMEPKIU (2000) 100 FCR 530, 546.1 to 549.1 [67]-[76].

   [52]The historical need for conduct to be so authorised is discussed in Giblan v National Amalgamated Labourers’ Union of Great Britain and Ireland [1903] 2 KB 600, 617.3-617.8, 620.5, 625.3-625.7; Denaby & Cadeby Main Collieries Ltd v Yorkshire Miners Association [1906] AC 384, 390.4-390.7 and 391.5-391.9; Waterside Workers Federation of Australia v Burgess Brothers Ltd (1916) 21 CLR 129, 136.5 and 137.6-138.7; Commonwealth Steamship Owners Association and the Federated Seamen’s Union of Australasia (1923) 33 CLR 297, 303.8, 307.8, 314.9-315.3.

   [53]Employment Advocate v NUW (2000) 100 FCR 454, 493.1 to 493.9 [119]-[121]; Hanley v AFMEPKIU (2000) 100 FCR 530, 550.3-550.6 [83]-[84]; Alfred v Wakelin (No 2) (2008) 176 IR 430, 447.7 [59(5)]; Hamberger v CFMEU (2000) 104 IR 45, 56.1 [71].

   [54]TPC v Tubemakers of Australia Ltd (1983) 47 ALR 719, 742, cited in Hanley v AFMEPKIU (2000) 100 FCR 530, 550.5 [83]; Alfred v Wakelin (No 2) (2008) 176 IR 430, 447.9 [59(6)].

   [55]Hanley v AFMEPKIU (2000) 100 FCR 530, 548.9 to 549.1 [76].

   Formal proof of the CFMEU’s rules and officeholders

1. As mentioned above, the CFMEU is an organisation registered with the Commonwealth statutory body that was known at the time of the hearing as Fair Work Australia (FWA).[56]  The CFMEU is so registered under the FW(RO) Act.  That is common ground.[57]  Initially, senior counsel for the CFMEU told the Court that, there being an underlying proceeding in this matter, his client did not admit the matters alleged by the applicants in relation to the CFMEU’s rules and its relevant office holders.  However, he indicated even then that he did not intend to cross-examine the relevant witness on the matter.[58]  Indeed, the CFMEU did not object to or question any of the evidence led by Grocon in these respects.  Nor did the CFMEU’s closing written submissions include any suggestion that any of the matters had not been proved.  Quite the opposite.[59]  Moreover, senior counsel for the CFMEU indicated during his closing oral submissions that these matters were not matters that the CFMEU had chosen to contest and hence were not matters that the Court would need to rule upon.[60]  In the circumstances I will deal with the matters summarily. 

   [56]Fair Work Australia was renamed the Fair Work Commission on 1 January 2013 by the Fair Work Amendment Act 2012 (Cth). However I will continue to refer to it as FWA.

   [57]It is also confirmed by the evidence of Ailsa Jane Carruthers, an officer of FWA, who gave unchallenged evidence to the effect that the CFMEU was a registered organisation.  It is further confirmed by the fact that the CFMEU has filed an unconditional appearance in the underlying proceeding in its registered (corporate) name. 

   [58]See transcript (26 September 2012) 16, 22, 41 to 43. 

   [59]Par 4.1 of the CFMEU’s closing written submissions filed 15 October 2012.

   [60]Transcript (18 October 2012) esp at 338 to 339.  See also at 272 (lines 13-15), 310 (lines 18-20).

1. I am satisfied beyond reasonable doubt that for the period from 28 August 2012 until 5 September 2012 (and indeed for the whole of the period from 27 September 2010 until 14 September 2012) the relevant national and divisional rules of the CFMEU were as alleged by the applicants, that is to say, they were in the form of the sets of rules comprising exhibit “AC-5” to the affidavit of Ailsa Jane Carruthers (an officer of FWA) affirmed on 14 September 2012.[61]  I am so satisfied by reason of the matters set out in paragraphs 43-55 of Grocon’s written closing submissions filed 5 October 2012.  In short, I accept that, to be valid and operative, the rules of a registered organisation such as the CFMEU were required to be kept registered with Fair Work Australia in a full and up to date form; that Ms Carruthers, by reason of her position and role at FWA, was able to identify and produce a copy of the relevant rules of the CFMEU as registered for the periods to which I have referred; and that she duly did so by means of her affidavit of 14 September 2012 and her supporting oral evidence.

   [61]Exhibit P 27.  The same rules also comprise the attachments to the covering certificates of Ms Carruthers at exhibits P 1 and P 2. 

1. Although, as Grocon submits, nothing further is required, I note that Grocon sets out in paragraph 57 of its written closing submissions certain additional grounds in support of the admissibility of the sets of rules identified by Ms Carruthers.  Similar grounds are also advanced by the Attorney-General in paragraphs 2.1 to 2.29 of Schedule 2 to his final written submissions filed on 5 October 2012.  Although I need not and do not rule on these additional grounds, I note that the CFMEU did not advance any argument to the contrary of any of them. 

1. Turning to the office holders of the CFMEU, I am satisfied beyond reasonable doubt that for the period from 28 August 2012 to 5 September 2012 (and indeed for the whole of the period from 1 January 2012 until 10 September 2012), the 13 persons listed in the table set out in paragraph 64 of Grocon’s written closing submissions filed on 5 October 2012 held the CFMEU offices specified for them respectively in the table.  Those persons are David Noonan, Bill Oliver, John Setka, Ralph Edwards, Noel Washington, Elias Spernovasilis, Frank O’Grady, Shaun Reardon, Derek Christopher, Gareth Stephenson, Theo Theodorou, Danny Baradi and Craig Johnston.  I am so satisfied principally by reason of the matters set out in paragraphs 58-69 of Grocon’s submissions.  As those paragraphs state, the CFMEU, being a registered organisation, was required by s 230 of the FW(RO) Act to keep a record that contained a list of the offices in the organisation and each branch of the organisation, and a list of the names, postal addresses and occupations of the persons holding those offices.  Once in each year, between 1 January and 31 March, the CFMEU was required to lodge with FWA a copy of those records, certified by declaration by the secretary or other prescribed officer of the organisation to be a correct statement of the information contained in the records – ie the “annual return” (s 233 FW(RO) Act).[62]  The CFMEU was also required (by s 233(2) of the FW(RO) Act) to notify any change to the list of officials by lodgement with the FWA within 35 days.[63]  Ms Carruthers has duly identified the annual return lodged by the CFMEU in 2012 which includes a comprehensive list of offices and officeholders within the CFMEU as at 1 January 2012.  The abovementioned table of 13 persons is in accordance with the annual return.  The evidence of Ms Carruthers establishes that no change was notified to FWA by the CFMEU in relation to any of the 13 persons in question up until 10 September 2012.  It is true that, theoretically, there might have been a relevant change in the 35 day period between 5 August 2012 and 10 September 2012, being a change which the CFMEU, without breaching the 35 day limit, might have omitted to notify to the FWA.  However, as I have already mentioned, although the position of the CFMEU is that, generally speaking, its silence cannot be used against it in this case, its senior counsel frankly acknowledged that, in view of the evidence in the case, the silence of the CFMEU on the particular topics of the rules and the officials could appropriately be used against it to confirm that “the officials were in effect agents of the CFMEU”.[64]  Indeed, in relation to Mr Setka in particular, Mr Morrissey had earlier said:  “It’s true that Mr Setka is an official, you will find on the evidence here, that you’d find that he is a CFMEU official”.[65]

   [62]See also reg 149 of the Fair Work (Registered Organisations) Regulations. 

   [63]Regulation 151 of the Regulations.

   [64]Transcript (18 October 2012) 338-339.

   [65]Transcript (18 October 2012) 272 (lines 13-15).

No “incite”

1. In relation to the particular charge based on Edwards saying over a loud speaker “Back here again tomorrow boys for more fun”, the CFMEU does not dispute that the words were said but submits that they were cryptic words and cannot prove the pleaded incitement.  It says that the phrase “back here tomorrow” is ambiguous; that it may be no more than an announcement of the CFMEU’s intention to be present.  It says that the term “more fun” is ambiguous.  It says that it would be mere conjecture to suggest that this was an effort to incite persons to “prevent free access”.  Other equally valid conjectures arise, it says.  It may be a reference to further protest or further police engagement (legitimate or otherwise). 

Summary – 28^th August 2012

1. The CFMEU submits that each of the allegations relating to 28 August ought to be dismissed.

Second contempt application – 29 and 30 August 2012

1. The CFMEU submits that, in relation to the charges pertaining to 29 and 30 August 2012, the Court should disregard the assertion made by Grocon[304] that “the subject matter of the second contempt application is continuing and related conduct by the CFMEU”. The CFMEU says there is no charge to that effect. It says that no such evidence is sought to be admitted as tendency evidence pursuant to s 97(1) of the Evidence Act 2008.

   [304]Grocon’s written closing submissions dated 5 October 2012 para 122.

1. The CFMEU identifies the relevant allegations as being that on each of 29 and 30 August 2012, the CFMEU, through its agents, prevented, hindered or interfered with the free access pleaded by gathering in large groups, leaving “no clear path” in the eyes of McAdam.

1. According to the CFMEU, the evidence relied upon by the applicants in this regard is weak.  The CFMEU accepts that its officials were present and active at the site and that other persons, some wearing CFMEU-branded clothing, were also present.  However, it says that none are proved to be “under CFMEU authority”. It accepts that an anonymous person sang CFMEU songs on 30 August.  It accepts that McAdam saw no way through the crowd, some of whom wore CFMEU tops, on 29 August, and that McAdam saw what he called a “presence of blockaders” on 30 August.  It acknowledges that video footage confirms that amongst the crowds on each day were some persons with CFMEU jumpers and some with ETU jumpers but by far the majority, it says, with no branded clothing at all.

1. The CFMEU submits that the applicants rely upon a “formulaic” collection of evidence to link the CFMEU to these men: on each charged date, the applicants prove the presence of CFMEU officials, the presence of people (some wearing union garments), the presence of CFMEU paraphernalia, and the singing of certain songs.  Evidence of what the CFMEU calls “post-facto ratification” of protestors’ acts is led. 

1. The CFMEU adopts, in respect of these days, the same criticisms it made in respect of 28 August concerning the link between the acts of the “protesting crowd” and the CFMEU officials present.  It contends that there is no evidence that the CFMEU actions, whatever these were, had a causal link to the actions of the crowd of protestors.

1. More fundamentally, the CFMEU says, these charges are entirely artificial.  It says that there were no “persons engaged to work on the Emporium site that day” either on 29 or 30 August 2012.  All were redeployed at about 5pm the previous day.  According to the CFMEU, McAdam’s claim that he did not attempt entry because “large groups of persons were standing in front of the entrances to the Emporium” is of very little assistance to this Court.  Further, there was no attempt made to enter the site.  Finally, McAdam’s failure to see a “clear path” is a very weak basis for finding any impediment to access.

1. The CFMEU submits that these allegations should be dismissed.

Emporium site:  31 August 2012

1. The CFMEU adopts in relation to these charges the arguments it has made in relation to the 29 and 30 August charges.

1. The CFMEU says that these charges are based on its alleged agents simply being present.

1. According to the CFMEU, these charges too are artificial but for a different reason.  The “persons engaged to work on the Emporium site on that day” all entered the Emporium site.  It may be inferred, the CFMEU says, that this occurred both precisely when they chose to enter and that they were unmolested.  There is no evidence, the CFMEU says, that Grocon or the “persons employed” would have acted any differently on that day in the absence of the CFMEU officials and their proved activities.  According to the CFMEU, it is not possible to say, beyond reasonable doubt, that this charge is proved. 

1. Furthermore, the CFMEU says that it is irrelevant that McAdam entertained a concern for the Grocon workers on the afternoon of 31 August, a time outside the pleaded period of the offending.  In any case, it says, McAdam’s expressed concern is far too remote a basis for finding that the CFMEU prevented, hindered or interfered with free access as pleaded.

1. Likewise, for the same reasons, the CFMEU says that the charge of procuring (and its alternatives) should be dismissed.

McNab site: 5 September 2012: first semi-trailer incident

1. The CFMEU submits that the allegation relating to the first semi-trailer incident near the McNab site must fail for lack of evidence.  It says that while the Court might find that CFMEU officials spoke to the driver of the semi-trailer, that is as far as the evidence can progress.

1. The CFMEU says that the focus must be on the driver, not the vehicle.  It says that there is no evidence that the driver tried to enter McNab Avenue; no evidence as to why he did not enter; no evidence that, whatever the reason for that was, his free access was prevented, hindered or interfered with by the CFMEU. Further, the CFMEU says, there is no evidence concerning what was said to the driver by any CFMEU official or how he responded.  There is no evidence of any conversation he had with his employer, or any instruction that the employer gave. According to the CFMEU, what passed between Sgt Thompson and this driver is irrelevant to the issue.

McNab Avenue: 5 September 2012: second semi-trailer incident

1. The CFMEU contended that it was not proved beyond reasonable doubt that the semi-trailer which arrived on the second occasion was the same vehicle, but I have already found to the contrary.  It says that it has not been proved that the driver was the same or that CFMEU officials or their agents spoke to the driver, although someone did.  Furthermore, according to the CFMEU, the same evidentiary gaps exist in relation to this occasion as exist in relation to the earlier occasion and the charge simply cannot be made out.

Resolution of the remaining issues

1. With great skill and diligence, counsel for the CFMEU have said everything that could possibly be said on behalf of their client in these contempt proceedings, both in writing and orally.  However, having regard to my findings of primary fact set out above and all of the material and submissions before me, I am satisfied that each charge of contempt has been proven beyond reasonable doubt.

1. Generally speaking, I accept the submissions of the applicants on the remaining issues.

1. I will indicate where and why I depart from the submissions of the CFMEU on those issues. 

1. It is true that a strict construction of orders and charges is necessary in contempt cases.[305]  However, the CFMEU’s submission that the orders only apply where an actual attempt or request to gain access is made cannot be accepted.  Plainly, the orders are broader than that.

   [305]Bovis Lend Lease Pty Ltd v CFMEU (2009) 254 ALR 306, 317-318 [51]-[54]. See also my judgment in Livingspring Pty Ltd v Ng [2007] VSC 9.

1. It is clear on the face of the orders, beyond any doubt, that the very purpose, and the effect, of the orders is to restrain the CFMEU from deliberately causing or maintaining any obstruction to either site.  I accept the written submissions of the Attorney-General on this point, as summarised above, with their emphasis on the word “free”.  I accept also the oral submissions on this point made by Mr McDonald (for Grocon) at the final hearing,[306] including his reliance on the cases referred to in this context in Grocon’s written submissions.

   [306]Transcript (18 October 2012) 205-207, 214-217.

1. As Grocon submits,[307] obstruction can be physical or it can come in the form of intimidation.  It need not be total.  For something to be an obstruction, it would generally not need to be ‘tested’ to see if it could be safely overcome.[308]

   [307]Grocon’s written closing submissions dated 5 October 2012, [128].

   [308]McFadzean v CFMEU (2007) 20 VR 250 [122]; Haywood v Mumford (1908) 7 CLR 133, 138.

1. In McFadzean v CFMEU,[309] the Court of Appeal considered what constituted an ‘obstruction’ within the context of public nuisance.  Pertinently, Grocon cites the following paragraphs from the judgment of Warren CJ, Nettle and Redlich JJA:

   [309](2007) 20 VR 250.

The respondents argue, to the contrary, that it was open to the judge to conclude that there was no obstruction because it was not shown that the appellants attempted to pass or repass along the road during the relevant time, or alternatively on the basis that such if any hindrance as there may have been was not shown to have rendered it physically impossible for the appellants to pass had they wished to do so.

We do not agree. As we say, we see no reason to doubt the judge’s findings of fact, and therefore we proceed upon the basis that it was not established that any appellant or other member of the public attempted passage or was hindered in the endeavour. But obstruction may be proved without proof that a member of the public was in fact obstructed. As Griffith CJ put it in Haywood v Mumford, the question is simply whether what was done amounted to an obstruction:

… it is not necessary that anybody should in fact be passing down the street while the obstruction is there. The question is whether the obstruction is there? As I pointed out in argument, it would be a very singular thing if, in the case of a log laid across a foot way, the person who put it there could be allowed to say that there was no obstruction because nobody fell over the log. In my opinion the conviction was right, and upon the facts the magistrate could not have come to any other conclusion.

Equally, it is clear that an obstruction need not be total in order to amount to a nuisance. While the action for false imprisonment could not be maintained in Bird v Jones, Patteson J considered that an obstruction which prevented the plaintiff from proceeding in one particular direction on the public highway undoubtedly gave rise to an action on the case for obstructing the passage. Fullagar J took a similar view in Williams v Hursey.

More generally, any unreasonable or excessive use of a highway or activity on or near the highway which renders the highway less commodious to the public is enough to constitute a nuisance. So, for example, it is a nuisance to place logs on a public highway though it may remain possible for the public to steer a course around the logs; or for a merchant continuously to keep vans before the door of his shop in a fashion that practically appropriates part of the roadway for his business; or for a theatre to allow stationary crowds of patrons to block a substantial part of the street as they enter or exit the theatre;  or to maintain a picket with a view to compelling persons not to do acts which it is lawful to do.[310]

[310](2007) 20 VR 250 [121]–[124]. Footnotes omitted, and underlining added, by Grocon.

1. As Grocon further submits, the judgment of Griffith CJ in Haywood v Mumford[311] was also cited by Kelly J of the Supreme Court of the ACT in O’Dea v Castle.[312]  In that case, there had been a picket at Parliament House in which the appellant, Mr O’Dea, who was a member of the Builders Labourers Federation, had participated.  Kelly J found that access to Parliament House has been physically possible.  He said:[313]

I am satisfied that there was a passage left between the group, of which the appellant formed one, and the northern wall of the Parliament House building immediately to the west of the main doors through which a person wishing to enter the Parliament might have done so.  However, at various times such a person could have been at risk of having the Eureka flag blow in his face.

Nevertheless, Kelly J was satisfied that at the relevant time ‘free’ entry to and exit from the Parliament by members and others was inhibited since, to get into the Parliament, those persons would have had to take the passage or passages left by those persons present on the portico of Parliament House, including the group of which the appellant was one.  Kelly J was satisfied that the impediment by the ‘channelling’ of access into the Parliament constituted an ‘obstruction’ as that word ought properly to be understood.  His Honour applied the following passage from the judgment of Griffith CJ in Haywood v Mumford:[314]

In my opinion, the term ‘obstruction’ as used in the Police Offences Act 1890, includes any continuous physical occupation of a portion of a street which appreciably diminishes the space for passing and repassing, or which renders such passing or repassing less commodious, whether any person is in fact affected by it or not.  In the nature of things such a diminution of available space might be made by a single individual, although that is unlikely.  For instance, a man who stood in the middle of the road with his arms stretched out or holding something in his hands might so appreciably diminish the available space.  A crowd of persons standing in the street would certainly do so, and, if they were acting in concert, they would all be sharers in obstructing the street.

The lawfulness or unlawfulness of the obstruction is immaterial.

[311](1908) 7 CLR 133.

[312]Unreported, ACT Supreme Court, 19 April 1983.

[313]At page 6.

[314](1908) 7 CLR 133, 138.

1. It cannot be doubted that the blocking by a third party of even one of multiple means of access to a building site may amount to preventing “free” access, and all the more so when the entry point blocked is the normal entry point, or one of the normal entry points, to the site.  A fortiori, such blocking may amount to hindering or interfering with free access.

1. In my view, “free” access may be prevented, hindered or interfered with where access is made more difficult by an obstruction, even if persons might still be able to access the site.  It follows that if the CFMEU is found to have obstructed access to even one point of entry to the site, it may have prevented, hindered or interfered with free access. 

1. Arguably, the expression “preventing, hindering or interfering with”, which precedes the expression “free access” in the relevant orders, carries with it a sense of deliberateness.  In favour of the CFMEU, I will assume (without deciding) that it does.  Therefore, if the CFMEU, though responsible for the presence or conduct at the relevant building site of the persons in question, did not intend that the presence or conduct of those persons would obstruct access to the site, then there may be a question whether the order would be infringed, even if obstruction did occur.  However, if obstruction did occur, and if the CFMEU were responsible for the presence or the conduct of the persons in question, and did intend that their presence or conduct would obstruct access to the site, then, in my view, the CFMEU would clearly have prevented, hindered and interfered with “free“ access to the site. 

1. The CFMEU argues that the relevant orders could not have been intended to prohibit lawful protests that result in short delays, discomforts or anxieties, and that, if it were otherwise, such orders would be draconian.[315]  However, given my findings of primary fact as set out above, this submission is of no assistance to the CFMEU.  Even if the gatherings of people at the relevant sites were properly characterised as “protests”, they caused far more than short delays, discomforts and anxieties.  Each incident lasted many hours and consisted for the most part of static gatherings of large numbers of persons.[316]  As further explained below, I am satisfied beyond reasonable doubt that the gatherings were intended by the CFMEU to cause, and did cause, obstruction to access to the sites and, as an intended result, disruptions to work at the sites.

   [315]Addendum, [5].

   [316]See the further reference to McFadzean v CFMEU below.

1. In any event, the CFMEU’s submission begs the question whether or not the gatherings constituted lawful protests.  In McFadzean v CFMEU, to which I have already referred, the CFMEU deployed various vehicles in such a way that the vehicles blocked a public road leading to an anti‑logging protest site, with the result that anti-logging protestors already at the site could only obtain egress by walking 1.5 kilometres through dense bushland and then obtaining transport or, potentially, by asking police for assistance to leave (although the CFMEU had maintained that anti‑logging protestors would not be let through the picket, even with police assistance).  The Court considered and rejected a submission by the CFMEU, similar to the submission that it makes in the present case, that any obstruction caused was the result of a lawful protest:

Counsel for the respondents faintly suggested that the respondents’ use of the road was reasonable because it was in furtherance of an industrial picket.  We reject that suggestion.  Processions may use a public road for passage on lawful occasions for lawful objects provided that the use is reasonable.  But a static demonstration or picket is of a different order.  A picket line which threatens obstruction of the thoroughfare and besetting of those who wish to travel on the roadway so as to cause persons to hesitate through fear to proceed constitutes an unreasonable obstruction amounting to a public nuisance and an interference with private rights.  It amounts to an unreasonable restriction upon the right of an individual to free movement on a roadway.  A public road is primarily for free passage of the public for all reasonable purposes. An assembly of persons on a public road which significantly affects free passage is in its nature irreconcilable with the right of free passage, and therefore a public nuisance. It is also a summary offence.[317]

In my view, to the extent that the gatherings in question caused substantial interference with traffic on the public roads of the Melbourne CBD, they were probably not lawful protests. 

[317][2007] 20 VR 250, 282, 283 [126] (footnotes omitted).

1. As the CFMEU was at all times aware, each of the relevant orders of this Court was made in response to unchallenged allegations of obstructive picketing.  For many years, the courts have made orders, expressed in the same fashion as these orders, in response to, and to restrain, obstructive picketing.[318] 

   [318]See, eg, Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143; Mine Management Pty Ltd v CFMEU (1999) QSC 56; Australian Workers Union v Pilkington (Aust) Ltd [2000] FCA 1169; Tycan Australia Pty Ltd v AFMEPKI [2002] VSC 168.

1. It is clear beyond doubt that the relevant orders of the Court had the effect, at least, of restraining the CFMEU from deliberately causing any obstruction to access to either construction site via any point of entry to the site, whether or not the obstruction resulted from a “lawful protest”. 

1. These observations represent a complete answer to all those submissions of the CFMEU that assume the necessity for an attempt or a request to gain access to the site and to all of its submissions that assume that obstructing only one, or less than all, entrances to the site may not amount to the prevention of “free access”.  It also renders the particular ruling of Tracey J in Bovis Lend Lease Pty Ltd v CFMEU[319], on which the CFMEU relies, plainly distinguishable.  It should also be noted that the form of the relevant order being considered by Tracey J was somewhat different.  It referred to obstructing or interfering with the “passage” of any person.  It did not refer to “access”, much less “free access”.

   [319](2009) 254 ALR 306, 326 [90].

1. On the other hand, turning to the next of the CFMEU’s written submissions as outlined above, I accept that it would be oppressive to impose convictions or to make findings of contempt on both the principal charges and the corresponding causing/procuring/inciting charges.  I am not persuaded by Mr McDonald’s oral submissions to the effect that the matters charged are sufficiently distinct to warrant separate findings of contempt.[320]

   [320]Transcript (18 October 2012), 207-213.

1. I turn to the CFMEU’s submission that the presence of the large numbers of “protestors” on the days in question amounted to mere inaction and that, as a result, the applicants needed to prove a threat of genuine violence or aggression.  The submission cannot be accepted.  This was not a case of mere inaction.  Indeed, there was a great deal of action on the part of the assembled groups of men, at least on 28 August and 5 September 2012.  Moreover, if the CFMEU procured the attendance of the men or directed their conduct, then that was action, not inaction, on its part.  In any event, on each of 28, 29, 30 and 31 August the men were, by standing close to each other in large numbers, causing an obstruction to at least one normal entry point to the Emporium site.  At the McNab site, the men in question took active steps to stop the progress of the semi-trailer.  “Free access” was prevented on each day.  It is not necessary for the applicants to prove a superadded threat of violence or aggression.  The contrast with the “serious criminal behaviour” referred to in the MUA case is irrelevant.

1. Turning to the CFMEU’s next point, I do not accept that there are reasonable inferences open that the crowds, as such, attended at the Emporium site other than because they were procured or caused to attend by the CFMEU.  A few individuals might perhaps have attended for their own reasons independently of any steps taken by the CFMEU to cause or procure their attendance, but not the hundreds and hundreds of men who attended early in the morning, morning after morning, at considerable personal inconvenience and risk.  I agree with the Attorney-General that that proposition is absurd.

1. It is possible that the ETU or other unions might have had some minor involvement.  But that would not matter.  All the evidence points directly and inexorably to the CFMEU as being, at the very least, the main organiser, if not the sole organiser, of the “protests”.  Any role played by any other union or anyone else could only have been minor and subordinate.  I have come to that conclusion because I accept the applicants’ submission that the fact that the CFMEU caused the attendances of the crowds at the sites and directed their conduct there is put beyond any doubt at all by the accumulation of circumstances disclosed by the evidence, including, among many other things:

•the context supplied by the bitter industrial dispute between the CFMEU (alone) and the Grocon group;

•the prior picketing that had occurred in support of the CFMEU’s cause in the industrial dispute;

•the repeated attendance at the Emporium site of several very senior CFMEU officials;

•the array of CFMEU paraphernalia at the “protests”;

•the significant number of persons present who were wearing CFMEU branded clothing (whether or not in the majority); and

•the numerous public statements made by the CFMEU and its officials claiming ownership of the dispute and of the “protests”, including

(i)the CFMEU flyer stating that “it will be a long time before shoppers enjoy the new Myer Emporium unless Grocon changes its ways”;

(ii)the statement by Oliver to the ABC News on 28 August that the rally that morning had been “disciplined”;

(iii)the proud boast by Edwards on the loud hailer on 28 August to the effect “Back here tomorrow boys for more fun”;

(iv)the stirring speeches by Christopher on 28 August 2012 and his leading of the chants referring to the CFMEU;

(v)Edwards’ assertion on the loud hailer on 31 August that “we have laid siege to this job”;

(vi)the statement by Oliver on the CFMEU website on 31 August that “we” were willing to lift “our” picketing of Grocon;

(vii)the statement by Oliver to the ABC News on 4 September 2012 complaining that Grocon did not agree to a term of settlement that, after 14 days, “we” could come back and “take more peaceful demonstrations”.

1. Turning now to the CFMEU’s submissions concerning the events at the Emporium site on 28 August in particular, I consider that, for the reasons already given, it does not matter whether there was an attempt by the Grocon workers to enter the site on that day or whether there was an attempt by the police to facilitate the entry to the site of the Grocon workers.  As it happens, and as indicated in my findings of primary fact, I am satisfied by McAdam’s evidence, beyond reasonable doubt, that McAdam, Grocon and the workers themselves genuinely intended that the workers should cross to the Emporium site that morning and also that there was some plan in place in this regard to which the police were a party.  I note again that McAdam and the rest of the Grocon group were “waiting for the police signal to cross”. 

1. On any view, the presence of the “protestors” constituted a physical barrier that made free access impossible, in the sense that access via a particular path that the workers might wish to take was impossible.  The clash involving the police horses only demonstrates the determination of the CFMEU officials and the assembled men (and, through both of them, the CFMEU) to resist any outside attempt to interrupt their stance. 

1. It is fanciful to suggest, as the CFMEU did during final oral submissions, that the police horses might have been advancing for the purpose of rescuing a fallen police officer.  There is no evidence that there was any fallen police officer.  Whether or not the waiting Grocon workforce had been seen by the relevant persons in the gathering, it is hard to credit that the persons gathered, including the CFMEU officials, did not at least suspect that the purpose of the advance of the police horses was to try to facilitate the entry of Grocon workers into the Emporium site.  After all, those workers, for one reason or another, had not accessed the site for some days.  Further, the altercation happened at what would have been normal starting time for the Grocon workforce.

1. Given that the deliberate obstruction by the CFMEU of any one entrance to the Emporium site would have been enough for a breach of the order, there is no point in debating whether what was occurring at the Emporium site amounted to a “blockade”.

1. The omission on the part of the applicants to “poll” the crowds at the Emporium site is of no significance.  I have already indicated that I am satisfied beyond reasonable doubt on the evidence that has been led that the attendance of the crowds was procured by the CFMEU.  It can hardly be said that anyone in the crowd was likely to be cooperative with an inquiry from Grocon or the police as to who had procured their attendance. 

1. For the reasons already given, I am satisfied beyond reasonable doubt that there was a defacto refusal of access.  Further proof of this is supplied by Setka’s hostile and insulting reaction to the Grocon worker who said to him, just after 7.00 am, that the Grocon workers just wanted to go to work. 

1. For the reasons already stated, I am satisfied beyond reasonable doubt that the CFMEU did cause the crowds to “gather … and prevent” access to the Emporium site.  Hence the procuring etc charges, as well as the principal charges, are made out. 

1. Contrary to the CFMEU’s submissions, I see no real ambiguity in the words of Edwards to the crowd over the loud hailer:  “Back here tomorrow boys for more fun”.  In my view, he was plainly inciting the crowd to return to the Emporium site on the next day and to conduct themselves in much the same way as they had on 28 August.  Edwards is a senior CFMEU official.  Quite properly, counsel for the CFMEU effectively concedes that the acts of all of the named officials, including Edwards, are legally attributable to the CFMEU.  The charge of incitement based on the words of Edwards is proven beyond reasonable doubt. 

1. As to the charges relating to 29 and 30 August 2012, I do not accept the CFMEU’s submission that I should disregard the assertion made by Grocon that “the subject matter of the second contempt application is continuing and related conduct by the CFMEU”. In my view, it is irrelevant that the CFMEU has not been charged with a continuing offence or a “between dates” offence. The conduct the subject of the second application certainly was continuing and related conduct by the CFMEU, in the sense that, obviously, it was conduct inextricably bound up with the ongoing industrial dispute between the CFMEU and Grocon. It would be completely artificial and wrong to consider the events that occurred on each of the pleaded days in isolation from the events that occurred on the other pleaded days. Tendency evidence is not involved. Section 97(1) of the Evidence Act 2008 is irrelevant. 

1. For the reasons already given, and in the light of my findings of primary fact, there is every reason to infer that the stance of the members of the crowd on 29 and 30 August 2012 was exactly the same as the stance of the members of the crowd on 28 August.  Because of the crowds’ stance, McAdam could see no clear path to the Emporium site via the entrances near Gate 1.  I have no doubt at all that the crowds present on 29 and 30 August 2012 would have refused any request to allow a “clear path” to open up in their midst if the path was to be used by Grocon workers.  The assembly of men constituted an obstruction to access to the sites.  I am satisfied beyond reasonable doubt that the CFMEU caused or procured their attendance and their behaviour.

1. This charge does not fail because of the redeployments that occurred at 5.00 pm on the previous days.  I accept Mr McDonald’s submission[321] that the notion of redeployment is in fact consistent with the workers doing something other than what they would be doing in the ordinary course of business.  These workers remained workers who were engaged by Grocon to work on the Emporium site on 29 and 30 August 2012 because that is what they would have been doing in the ordinary course of business.  The prior redeployments were disclosed in Grocon’s evidence that was served with the second summons.  The CFMEU cannot ever have been in any doubt about the way the charges were being put.  These charges are proven beyond reasonable doubt. 

   [321]Transcript (18 October 2012) 244.

1. A large crowd attended again in the same vicinity on 31 August 2012, although it was kept some distance from the Emporium site by a series of temporary fences, and approximately 80 police officers were between the temporary fences and the site.  The crowd had the same stance and attitude as the previous crowds.  I am satisfied beyond reasonable doubt the CFMEU had procured the attendance of the crowd and was directing its conduct. 

1. It is true that some workers obtained access to the site on this day, but only with the elaborate assistance of the police.  Furthermore, only 30 workers managed to obtain access as compared with the normal complement of about 90.  The video footage confirms at 6.26 am the crowd was dense and spanned in a westerly direction from Swanston Street down Lonsdale Street and that, at this time, no vehicular passage was possible on Lonsdale Street due in part to the large group of static persons.  At 7.20 am members of the crowd were gathered on the road at the intersection of Swanston and Lonsdale Streets, blocking traffic along both streets.  Seven CFMEU officials were in attendance during the morning of 31 August 2012.  They are listed above.  One of them, Edwards, addressing the crowd on a loud hailer at 5.42 am, said, among other things, “We are here to stay.  We have laid siege, we have laid siege to this job and we’re not going away … we’re not here to have a brawl … we are disciplined, we are organised, and that’s what’s got us the wages and conditions that this industry pays”.  He also said:  “Whatever provocation occurs, laugh at ‘em.  Why?  Because we should be happy.  The police have shut down the city for us.  Here to stay, right?”  This was met with cheers from the crowd. 

1. In all the circumstances, I am satisfied beyond reasonable doubt that the free access of Grocon employees to the Emporium site was prevented (and hindered and interfered with) by the CFMEU on 31 August 2012. 

1. Turning to the McNab site, having regard to my findings of primary fact there can be no doubt at all that free access to that site was prevented by the CFMEU on the morning of 5 September 2012.  The video evidence really does speak for itself.  I have already found that it was the same truck on both occasions.  It is overwhelmingly likely that it was the same driver too.  The semi-trailer was physically interrupted in its journey.  It was undoubtedly en route to the McNab site.  Setka and Reardon almost certainly spoke to the driver on the first occasion.  Reardon also addressed the assembled men.  Even if the reason why the driver ultimately did not proceed was that he was persuaded of the rightness of the CFMEU’s cause, it would not avail the CFMEU.  The men present had already obstructed, and thereby prevented, the free access of the vehicle to the McNab site.

1. Once again, the CFMEU effectively concedes that the conduct of Setka and Reardon must be treated as the conduct of the CFMEU.  Even though both of them had left by the time of the second truck arrival, there remained persons wearing CFMEU clothing amongst the assembled men and Reardon had previously addressed them. 

1. In all the circumstances, I am satisfied that the CFMEU prevented free access by the semi-trailer to the McNab site twice on 5 September.  On the other hand, the two incidents were not very far apart in time and they were related.  I consider that a single finding of contempt is sufficient.

Conclusion

1. For the reasons stated above, I have concluded that all 30 of the extant charges against the CFMEU have been made out, but that it is sufficient to record only five findings of contempt, being one for each of the relevant days.

1. It being agreed between the parties that any question of penalty must be deferred for further hearing and determination, I will hear counsel in due course as to their proposals for the further progress of these proceedings.