Grocon v Construction, Forestry, Mining and Energy Union (No 2)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

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:	7, 13, 19, 20 and 21 August, 14 and 15 November 2013 and 28 February 2014
DATE OF JUDGMENT:	31 March 2014
CASE MAY BE CITED AS:	Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 134	Revision No 1 (31 March 2014)

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CONTEMPT OF COURT – Breaches of restraining orders – Parties – Contempt proceedings commenced by private companies – Attorney-General joined as co-plaintiff shortly after commencement – Late application by defendant for removal of Attorney-General – Whether Attorney-General a proper or necessary party – Discretionary factors – Application for removal refused – Supreme Court (General Civil Procedure) Rules 2005 r 9.06(a).

CONTEMPT OF COURT – Breaches of further restraining orders – Parties – Further contempt proceedings brought by private companies – Application by Attorney-General to be joined as a co-plaintiff – Attorney-General’s standing – Discretionary factors – Application for joinder granted – Supreme Court (General Civil Procedure) Rules 2005 r 9.06(b).

CONTEMPT OF COURT – Breaches of restraining orders - Blocking access to building sites – Hindering deliveries to building sites – Whether civil contempt or criminal contempt – Industrial context –Relevant sentencing principles – Objective seriousness – Proportionality – Consistency – Totality – General and specific deterrence – Whether convictions should be recorded – Quantum of fines – Orders as to costs.

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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 and, on 14 and 15 November 2013, Ms R Sweet	Victorian Government Solicitor’s Office
For the first defendant	Mr P Morrissey SC,  Ms R Shann	Slater and Gordon

HIS HONOUR:

Introduction

1. Three applications by summons, each alleging contempts of court in the form of disobedience to various orders of this Court, have been brought against the defendant, the Construction, Forestry, Mining and Energy Union (“the CFMEU”), during the course of this proceeding.  The applications have an…