Grocon v Construction, Forestry, Mining and Energy Union (No 2)
[2014] VSC 134
•31 March 2014
| 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
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 extensive, interrelated history. The first part of that history is set out in the judgment (of 124 pages) relating to the liability phase of the first and second contempt applications which I published on 24 May 2013 and which I will treat as having been incorporated into this judgment and read.[1] The moving parties in the first and second contempt applications were the Grocon plaintiffs and the Attorney-General for Victoria. I upheld a total of 30 charges of contempt of court. The charges related to obstructive picketing at two building sites in Melbourne, known as the Emporium site and the McNab site, occupied by the Grocon plaintiffs. Because of overlap between the charges, I determined that it was appropriate to record five findings of contempt, one for each relevant day. The questions of penalty and costs were deferred for later submissions and later hearing in the customary way. Subsequently, in August 2013, in relation to the third contempt application, I made two further findings of contempt. The findings were based on two breaches by the CFMEU on 26 April 2013 of an order which I had made on 4 March 2013. In short, those breaches consisted of failures on the part of the CFMEU to prevent certain of its organisers from continuing with physically obstructive conduct at the premises of two suppliers to the Grocon plaintiffs known as Cambar and Hollow Core, respectively (“the Cambar/Hollow Core contempts”). Again, the questions of penalty and costs were deferred for later submissions and later hearing, together with a pending claim by the Attorney-General to be added as a co-plaintiff to the third contempt application. The interrelated history of the three contempt applications, including the relevant additional orders made by this Court, is brought up to date in some detail below. The detailed history is important in relation to all of the outstanding issues, including the issues as to costs.
[1]Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275.
In addition to the history, the principal matters to be covered in this judgment are, in summary:
(a)An expanded statement of reasons for the decision which I made and announced on 19 August 2013 to reject an application by the CFMEU to remove the Attorney-General for Victoria as a co-plaintiff to the first and second contempt applications;
(b)The question whether the application of the Attorney-General for Victoria to be joined as a co-plaintiff to the third contempt application should be granted;
(c)General principles relating to the penalisation of the contempts;
(d)General principles for distinguishing between civil and criminal contempt;
(e)The question whether the Emporium site contempts and the McNab site contempt, or any of them, should be classified as criminal;
(f)The question whether the Cambar/Hollow Core contempts, or either of them, should be classified as criminal;
(g)The application of the penalty principles to the Emporium site contempts and the McNab site contempt;
(h)The application of the penalty principles to the Cambar/Hollow Core contempts;
(i)Final conclusions and orders.
Imposing a penalty for contempt of court may be compared with sentencing in criminal proceedings. In Construction, Forestry, Mining and Energy Union v Williams,[2] the Full Court of the Federal Court, citing six High Court judgments, observed:
As has been said many times, sentencing is one of the most, if not the most, difficult tasks that judicial officers perform … . The task is complex. It is not mechanical or mathematical …
The difficulties and complications which accompany sentencing in criminal proceedings are compounded in the present case by a number of factors.
[2][2009] FCAFC 171, [28] (internal citations omitted).
First, these are not criminal proceedings in the ordinary sense. Rather, they are contempt applications founded on non-compliance with interlocutory injunctive orders made by the Court. Traditionally, contempt of that kind has been classified as civil contempt, rather than criminal contempt. However, in more recent times, it has been held that contempt in the form of disobedience to a court order may be regarded as criminal if it is “contumacious”.[3] As indicated above, there is a contest in this case as to whether the relevant contempts, or any of them, are of that kind and as to whether, in any event, criminal convictions should be recorded. However that may be, these applications remain in form civil proceedings, heard in the civil jurisdiction of this Court pursuant to Order 75 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”), as was mentioned in my judgment on liability.[4]
[3]Witham v Holloway (1995) 183 CLR 525, 530; Seymour v Migration Agents Registration Authority [2006] FCA 965 (Rares J), [73]–[108], esp at [104].
[4][2013] VSC 275, [13]. See also Allbeury v Corruption & Crime Commission [2012] WASCA 84, [68] (Buss JA); CFMEU v Boral Resources (Vic) Pty Ltd [2013] VSCA 378, [10].
Second, it seems that, prior to this proceeding, no Attorney-General in Australia or elsewhere in the common law world had applied to be joined as a co-plaintiff to a contempt application brought by a private plaintiff in relation to alleged non-compliance (out of court) with a court order.[5] The involvement, and proposed further involvement, of the Attorney-General came to be opposed by the CFMEU, albeit only belatedly in the case of the first and second contempt applications. Not only has that dispute required consideration, it has been necessary to consider the evidence adduced (or sought to be adduced) and the arguments advanced against the CFMEU by two sets of “prosecutors”, or proposed “prosecutors”, whose respective cases, or proposed cases, against the CFMEU have not always been fully consistent with each other, especially in relation to penalty.
[5]Cf Re Perkins; Mesto v Galpin [1998] 4 VR 505, 510.
Third, while the parties have cited many contempt cases and many other cases of general relevance, and while I myself have found and considered further cases of both kinds, authoritative guidance as to the appropriate sentencing range for contempt is limited, at best. It has been said by some judges that there can be no sentencing “tariff” for contempt because of the very wide variety of circumstances in which contempt can be committed.[6] Other judges have said or implied that an appropriate “range” of penalties for a contempt of court may be discernible.[7] Findings of contempt constituted by breach of a court order or undertaking on the part of a union or other registered industrial organisation (as distinct from an individual) have not been common in Australia. The parties between them have cited only a handful of cases of that particular kind. None of them was decided by a Victorian court. According to the parties, none involved an express finding of criminal, as distinct from civil, contempt.[8] Indeed, counsel said that they were unaware of any case decided in any Australian jurisdiction in which an express finding of criminal, as distinct from civil, contempt was made against either an organisation or an individual for breach of a court order or undertaking in an industrial context. However, both the Grocon plaintiffs and the Attorney-General have submitted that, if need be, I should break new ground and impose criminal convictions in relation to at least some of my contempt findings, together with fines many times higher than have ever been imposed on an industrial organisation in Australia for contempt in an industrial setting.
[6]Hannaford v HH (No 2) [2012] FCA 560 at [25], [36]-[37] (Dodds-Streeton J) and cases there cited. See also Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 112 [51]-[52] (Logan J).
[7]Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596, 618 [51], [55] (Gray J), [166], [188] (Bromberg J).
[8]But see below.
Fourth, as a result of the breadth and novelty of the subject matter and the extensive history of the proceedings it has been necessary to give the parties an unusually large number of opportunities to make oral and written submissions. The judgment on liability in the first and second applications, which of course the parties needed to address in relation to the outstanding issues, was unavoidably lengthy and detailed. It covered material advanced over the course of ten hearing days, including a very large quantity of electronic and documentary evidence.[9] Since then, a further eleven hearing days (including directions hearings and preliminary hearings) have been necessary, six large folders of authorities have been supplied and the Court has received a total of 22 sets of written submissions pertaining to one or more of the outstanding issues. Some of the written submissions have been of considerable size. For example, the Attorney-General’s initial written submissions on penalty in relation to the first and second contempt applications, alone, were 68 pages long (including appendices), and invited me to consider over 60 decided cases. Numerous additional cases were referred to by the Grocon plaintiffs and the CFMEU. As already indicated, there were inconsistencies between the submissions of the moving parties themselves, not to mention sharp conflicts between their submissions and those of the CFMEU. Very recently, as will be seen, the parties needed to make significant modifications to their earlier submissions as the result of decisions of the Court of Appeal and the High Court handed down in December 2013 and February 2014 respectively.
[9]Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 at [36]-[49].
I return now to the detailed history of the three contempt applications, including the more recent procedural steps taken by the parties and the additional orders made by the Court.
Further history of the contempt applications
In my judgment of 24 May 2013 I noted that, presumably, an original purpose of the first and second contempt applications was to secure obedience to the interim and interlocutory restraining orders to which they related.[10] I noted that, as at 24 May 2013, there was no suggestion that the CFMEU had disobeyed any of those particular restraining orders since 5 September 2012.[11] On the other hand, on Friday 1 March 2013, the Grocon plaintiffs had filed a summons seeking, in substance, interlocutory orders restraining the CFMEU from unlawfully interfering with the provision of supplies by third parties to the Grocon plaintiffs for use at any of the four building sites mentioned in the first and second applications (including the Emporium site) or at a fifth Grocon building site in Box Hill. The application was based on affidavits said to raise a prima facie case of current and threatened unlawful conduct on the part of the CFMEU in the nature of secondary boycotts directed at the Grocon plaintiffs. On Monday 4 March 2013 I heard the Grocon plaintiffs’ application. The application was opposed by the CFMEU. However, I was satisfied that it was appropriate to grant orders substantially of the kind sought and I made orders accordingly on that day. The orders included a supplementary provision to the effect that the CFMEU must, by a duly authorised person, write to seven named senior officials of the Victoria/Tasmania branch of the Construction and General Division of the CFMEU, including Messrs John Setka (Setka) and Mark Travers (Travers),[12] directing them that until the hearing and determination of the proceeding or further order they must not, among other things, hinder the supply or possible supply of goods or services by any person to any of the Grocon plaintiffs at or in relation to any of the specified building sites. There was a further supplementary order requiring the CFMEU to publish a statement on its website, addressed to all employees, officers and members of the CFMEU, to the same effect. In an affidavit filed on 6 March 2013, the National Secretary of the CFMEU deposed that both of the supplementary orders had been complied with.
[10]Ibid [38] fn 15.
[11]That remains the case today.
[12]The relevance of the references to those two particular individuals will appear below.
On Monday 29 April 2013 the first and third plaintiffs commenced what I have called the third contempt application.[13] They did so by filing a summons charging the CFMEU with contempt of court in the form of alleged breaches on Friday 26 April 2013 of the restraining orders which I had made on 4 March 2013. By charge 1 it was alleged, in short, that the CFMEU had prevented the supply of goods by Cambar Precast (Vic) Pty Ltd (“Cambar”) to the third plaintiff at the Emporium site. In particular, it was alleged that during the period of approximately 6.00 am to 11.00 am the CFMEU, by its agents, entered Cambar’s holding yard at Port Melbourne and parked cars in such a position as to prevent two semi-trailers from being attached to prime movers and thereby prevented the supply to the Emporium site of precast concrete panels and precast concrete columns. By charge 2 it was alleged, in the alternative to charge 1, that the CFMEU had hindered, interfered with or attempted to prevent, hinder, or interfere with the supply of goods by Cambar to the third plaintiff at the Emporium site. The particulars were the same. By charge 3 it was alleged that the CFMEU prevented the supply of goods by Hollow Core Concrete Pty Ltd (“Hollow Core”) to the first plaintiff at the 150 Collins Street site. In particular, it was alleged that on 26 April 2013, during the period of approximately 5.50 am to 2.00 pm, the CFMEU by its agents (including the abovementioned Mark Travers) parked a car at the exit of Hollow Core’s site in Laverton North so as to prevent the supply of precast concrete goods to the 150 Collins Street site by means of a prime mover with semitrailer attached. By charge 4 it was alleged, in the alternative to charge 3, that the CFMEU had hindered, interfered with or attempted to prevent, hinder or interfere with the supply of goods by Hollow Core to the first plaintiff at the 150 Collins Street site. Again the particulars were the same.
[13]The second plaintiff was not an applicant because the alleged breaches related to building sites with which it was not connected.
On 7 May 2013, the Attorney-General for Victoria filed a summons seeking orders pursuant to rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”) that he be joined as a further plaintiff to the third contempt application. The Attorney-General’s summons was made returnable for initial directions on 28 May 2013, being also the date then scheduled for a directions hearing in the first and third plaintiffs’ new (third) contempt application. In the meantime, on 24 May 2013, as already indicated, I published my judgment on liability in the first and second contempt applications.
On 28 May 2013 I made a series of procedural orders by consent. In substance, they set down a timetable for the filing and service by the parties during the period between 21 June 2013 and 14 August 2013 of any further affidavits on which they intended to rely, and of written submissions, in relation to the penalty phase of the first and second contempt applications, in relation to the application of the Attorney-General for joinder to the third contempt application and in relation to the liability phase of that application, respectively. The penalty hearing for the first and second contempt applications was fixed for 19 and 20 August 2013. The hearings on joinder and liability in the third contempt application were fixed to follow immediately thereafter, with an estimate of an additional 3-4 days.
The procedural orders made on 28 May 2013 envisaged that the first and third plaintiffs would file an amended summons in relation to the third contempt application by 5 June 2013. An amended summons was duly filed on that day. The principal amendment was the addition of a fifth charge against the CFMEU, namely that, throughout the month of May 2013, in further breach of my order of 4 March 2013, the CFMEU had attempted to prevent, hinder or interfere with the supply of concrete pumping plant and services by ICPS (Melbourne) Pty Ltd to the third plaintiff at the Emporium site “by attempting to persuade ICPS to remove concrete pumping plant from the Emporium site”.
During June and July 2013 the Attorney-General filed some nine fresh affidavits, from a range of deponents, with a view to relying upon them in the penalty phase of the first and second contempt applications. The CFMEU foreshadowed objections to the admissibility of large parts of this material. Ultimately, for various reasons, none of this material was received in evidence. Under agreed standing arrangements for this case,[14] most of the Attorney‑General’s affidavit material should have been adduced, if at all, during the liability phase. It was too late at the penalty stage to file it. Some parts were inadmissible for other reasons. In the end, the Attorney‑General did not press any of this material. In the meantime, however, the filing and service of the Attorney-General’s affidavit material led the CFMEU to apply for an extension of time for the filing of responsive material and, at the same time, to foreshadow that it proposed to make an application to re-open some of the findings of fact which had been expressed in my judgment of 24 May 2013.
[14]See transcript 26 September 2012, 56–57.
Over the same general period, the first and third Grocon plaintiffs filed a substantial quantity of additional evidentiary material relating to the liability phase of the third contempt application. Also the Grocon plaintiffs filed and served some further evidentiary material in relation to the penalty phase of the first and second contempt applications. Again, in each case, objections to admissibility were foreshadowed by the CFMEU and questions then arose as to the maintainability of the agreed timetable.
In these circumstances, it became apparent that there was a need for a further preliminary hearing in advance of the hearings scheduled to commence on 19 August 2013. Accordingly, a preliminary hearing was arranged for 7 August 2013. A large range of matters was discussed on that occasion. Some of the issues between the parties were narrowed. At the end of the hearing, it was agreed on all sides that there needed to be a further preliminary hearing in the near future. Such a hearing was fixed for 13 August 2013. In the meantime, on 12 August 2013, the CFMEU had filed a summons seeking an order that the Attorney-General be removed as a plaintiff in the first and second contempt applications.
At the further preliminary hearing on 13 August 2013 the issues between the parties were further narrowed. It was at around this time that the Attorney‑General confirmed that he would not be pressing his new affidavit material. The CFMEU, in turn, abandoned its foreshadowed application to re-open the findings of fact I had made on 24 May 2013. In the end, it was agreed that the scheduled hearing dates of 19 August and following could be retained. It was also agreed that the CFMEU’s application for the removal of the Attorney-General from the first and second contempt applications would be heard and determined as one of the first items of business on 19 August 2013. It was clear that, because the CFMEU’s application in that respect had been made very late and would thus encounter opposition based on, among other things, discretionary considerations, the fate of the application would not necessarily determine the fate of the Attorney-General’s extant application for joinder to the third contempt application.
It was further agreed that the first and third Grocon plaintiffs would not proceed with the further charge (numbered 5) which had been added to the third contempt application by way of the amended summons filed on 5 June 2013. The charge was not to be dismissed, but the parties agreed that it would not be pursued as part of the present proceeding.
On 19 August 2013 the hearing of the first and second contempt applications was resumed. As arranged, the first matter heard was the application by the CFMEU for removal of the Attorney-General. As already indicated, I refused that application on the same day. I gave brief oral reasons which incorporated by reference much of that day’s discussion of the issues. I reserved the right to provide a written elaboration of those reasons in due course.[15] I will do that shortly.
[15]Transcript, 19 August 2013, p 30.
With the application for removal of the Attorney-General out of the way, the hearing on penalty and costs in relation to the first and second contempt applications went ahead and on 20 August 2013 judgment was reserved, subject to a direction (requested by the parties) permitting the parties to file further written submissions on certain points of law within a limited period.
On the next day, 21 August 2013, the Grocon parties and the CFMEU announced that they had arrived at an agreed position in relation to the CFMEU’s liability on the third contempt application.[16] The agreed position was based on, and reflected, an agreed bundle of documentary exhibits. It involved some significant further proposed modifications to the statement of charge. The Attorney-General, though present as an applicant for joinder as a co-plaintiff to the third contempt application, did not seek to object. Having considered for myself the documentary evidence, I was satisfied that it was appropriate to make two additional findings of contempt against the CFMEU, being findings which accorded with the agreed position of the parties.[17] The findings were announced orally and recorded in an order made on 21 August 2013. They were made on the basis that, on 26 April 2013, during a period of approximately 3 and ⅓ hours, contrary to my order of 4 March 2013, the CFMEU had, by failing to prevent the continuation of physically obstructive conduct on the part of some of its officials, hindered the supply of goods to the first and third plaintiffs at relevant building sites by each of two suppliers.
[16]Transcript, 21 August 2013, pp 268-276, especially at 276.
[17]See ASIC v Ingleby [2013] VSCA 49 at [30], [45]-[46], [73], [101]; Director of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 1014 [8]-[9] (Gordon J).
In September, October and November 2013, pursuant to directions that had been given on 21 August 2013 in substantially agreed terms, written submissions relating to the questions of joinder, penalty and costs in respect of the third contempt application were filed and served. As it transpired, there was a considerable degree of overlap between those written submissions (insofar as they related to penalty and costs) and the submissions which had been made both in writing and orally on the questions of penalty and costs in relation to the first and second contempt applications. In the end, it seemed to me that it would be best to consider the questions of penalty and costs in relation to all three applications at the same time, together with the question of the Attorney-General’s application for joinder. Accordingly, during the oral hearings that took place (as scheduled) on 14 and 15 November 2013, I sought and obtained confirmation from all parties that the submissions made in relation to the first and second contempt applications could be taken into account in relation to the third application, and vice versa.
On 15 November 2013, at the parties’ request, I granted them liberty to file further written submissions by 25 November 2013 concerning a particular judgment of the Full Court of the Federal Court, namely Vaysman v Deckers Outdoor Corporation Inc,[18] a decision of relevance to the question of penalty in all three of the contempt applications, but not previously cited by any of the parties. Otherwise I reserved my decision on the outstanding issues. However, as mentioned above, there were subsequent developments which led to the need for yet another hearing. On 13 December 2013 the Court of Appeal gave judgment in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors.[19] In that case, the Court of Appeal refused leave to appeal from a judgment of Digby J relating to an application by the Victorian Attorney-General to be joined as a co-plaintiff in separate contempt proceedings against the CFMEU brought by Boral Resources (Vic) Pty Ltd. The judgment of Digby J (which had been given in October 2013) had been the subject of conflicting submissions in the hearing before me on 14 and 15 November 2013. In particular, the CFMEU had invited me not to follow it. In addition, on 12 February 2014, the High Court of Australia gave judgment in Barbaro v The Queen; Zirilli v The Queen.[20] In that case the High Court overturned a line of previous Victorian authority relating to sentencing submissions. In one of the earlier hearings before me, the possible significance of the then pending appeal to the High Court in Barbaro had been noted.[21] In Barbaro, the High Court held that, in criminal proceedings, prosecution counsel should not make submissions purporting to nominate the available sentencing range, much less proffer some statement of the specific result considered to be appropriate. It appeared to be at least implicit in Barbaro that the court should not entertain submissions of such a kind from counsel for the accused either.[22] Although the sentences in question in Barbaro were sentences of imprisonment, as distinct from fines, the judgment in Barbaro seemed to indicate that, equally, parties should not make submissions as to the available range of fines or as to the specific amount that should be imposed by way of a fine. Previously, before me, all of the parties had, without objection, made submissions about fines that might be imposed in relation to the three contempt applications, being submissions which descended to suggested available ranges in dollars and even to specific dollar amounts for fines for particular contempts. On 14 February 2014, as a matter of procedural fairness, I caused a memorandum to be sent to the practitioners for all parties setting out the provisional conclusions that I was minded to draw from the judgments in Boral and Barbaro respectively and invited comment as to whether any party wished to make submissions contrary to those provisional conclusions and if so by what means. The CFMEU sought an oral hearing. In the end, it was directed that the parties file brief written submissions in advance of a further oral hearing to be conducted on 28 February 2014. Written submissions were duly filed and a hearing on that day duly took place. I will return to those matters in due course. Judgment in all three of the contempt applications was then re-reserved.
[18](2011) 276 ALR 596.
[19][2013] VSCA 378.
[20][2014] HCA 2.
[21]Transcript, 20 August 2013, pp 183-184.
[22]Barbaro at [35]-[36] (“party”); see also [59].
Reasons for refusing to remove Attorney-General from first and second contempt applications
It is convenient now to elaborate on the reasons I gave on 19 August 2013 for my refusal to remove the Attorney-General from the first and second contempt applications.
It will be remembered that the Attorney-General for the State of Victoria had been made a co-plaintiff in the first and second contempt proceedings at an early stage, namely by orders made on 3 and 13 September 2012.[23]
[23]Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 at [3], [27], [32].
Those orders were made under r 9.06(b) of the Rules. It is desirable to set out the entirety of r 9.06. It provides:
9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that—
(a)any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;
(b) any of the following persons be added as a party, namely—
(i)a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
(c)a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.
Each of the two applications for joinder made by the Attorney-General in September 2012 was supported by an affidavit made on his behalf which referred to his position as the first law officer of the State of Victoria and to his responsibility for, and interest in, representing and safeguarding the public interest in vindicating the authority of the courts of Victoria. On each occasion the deponent referred to a certain earlier case (not involving the present parties) relating to picketing activity and asserted that the Attorney-General was concerned to avoid the development of a perception that the orders of this Court may be disobeyed in industrial contexts, or in circumstances where those who disobey them can escape sanction as part of a wider settlement of underlying industrial disputes.
In support of each of the original applications for joinder, the Attorney-General submitted in writing that he was entitled to be joined on the basis that he had a general power, derived at common law from his office as Attorney-General, to commence and maintain an application to the Court seeking that a person be punished for contempt, including for a contempt alleged to have been committed by way of disobedience to an order made in civil proceedings.[24] He cited certain authorities in this regard.[25]
[24]See outline dated 3 September 2012, para 2 and outline dated 12 September 2012, para 2.
[25]Ibid. He cited Attorney-General (UK) v Times Newspapers [1974] AC 273; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 774 and Broken Hill Pty Company Ltd v Dhagi [1996] 2 VR 117. He referred also to J Edwards, The Attorney-General, Politics and the Public Interest (1984) 161-171.
The Attorney-General further submitted in support of his original applications for joinder that, while he had the power to make his own contempt application in respect of the matters the subject of the Grocon contempt applications, it was desirable that any proceedings of his be joined to the existing proceedings rather than go forward in parallel. This, he submitted, would be consistent with one of the rationales for r 9.06, namely to avoid a multiplicity of proceedings.[26]
[26]See outline dated 3 September 2012, [13(d)] and outline dated 12 September 2012, [16].
At the time, the CFMEU was not taking part in the Grocon plaintiffs’ proceedings at all. Accordingly, there was no opposition by the CFMEU to either of the Attorney-General’s first two applications for joinder when made. I was satisfied by the submissions referred to above that it was appropriate to join the Attorney-General as a co-plaintiff in each of the original contempt applications. Subsequently, those applications were ordered to be heard and determined together.
The CFMEU’s application by summons dated 12 August 2013 to remove the Attorney-General as a co-plaintiff to the conjoined original contempt applications was made under r 9.06(a) of the Rules. In short, the CFMEU contended that the Attorney-General was neither a proper nor a necessary party to the proceedings and that his involvement should cease.
On 12 August 2013, in support of its summons for removal, the CFMEU filed written submissions which referred to and, at least in large part, relied upon written submissions which it had filed on 5 August 2013 opposing the Attorney-General’s application to be joined to the third contempt application. In the submissions of 5 August 2013 the CFMEU acknowledged that the Attorney-General had power “to protect civil proceedings by applying for the punishment of criminal contempts affecting those proceedings”.[27] However, the CFMEU was ambivalent in relation to the Attorney-General’s power “to initiate civil contempt proceedings where the contempt arises from breaches of orders in an underlying civil proceeding”, submitting that this power was “not manifest”.[28] It submitted that “the power to intervene in existing civil contempt proceedings is even less clear”.[29] It contended that the Attorney-General’s intervention in this case had no apparent precedent in Victoria.
[27]Submissions filed 5 August 2013, para 2.2 (as adopted by submissions filed 12 August 2013, para 2.2), citing BHP v Dagi [1996] 2 VR 117, 141 (Brooking JA) and Attorney-General (UK) v Times Newspapers [1974] AC 273, 311 (Lord Diplock).
[28]Ibid.
[29]Ibid.
In the written submissions, the CFMEU acknowledged that the Attorney-General was correct in saying that there was a public interest in every contempt proceeding, civil or criminal. But, the CFMEU submitted, that interest did not of itself warrant intervention in existing civil contempt proceedings. In such cases, the public interest was sufficiently protected by the prosecution of the contempt by the relevant party. The CFMEU cited the following comment of Lord Scarman in Home Office v Harman:[30]
The distinction between “civil” and “criminal” contempt is no longer of much importance, but it does draw attention to the differences between on the one hand contempts such as “scandalising the court”, physically interfering with the course of justice, or publishing matter likely to prejudice a fair trial, and on the other those contempts which arise from non-compliance with an order made, or undertaking required, in legal proceedings. The former are usually the business of the Attorney-General to prosecute by committal proceedings (or otherwise); the latter, constituting as they do an injury to the private rights of a litigant, are usually left to him to bring to the notice of the court. And he may decide not to act; he may waive, or consent to, the non-compliance.
[30][1983] 1 AC 280, 310.
In short, the CFMEU submitted, the existence of a public interest in all contempts had not led to any institutionalised role for the Attorney-General in civil contempt proceedings. More was required to be shown to justify intervention. In this case, the interests identified by the deponent to the affidavit relied upon by the Attorney-General were generic and general. Some of them would apply to all allegations of civil contempt and others to all such contempts in an industrial setting. Otherwise, the concerns were of no present relevance.
According to the CFMEU, there was nothing unusual about the first and second contempt applications. The Attorney-General had added nothing to them by way of evidence (during the liability phase), and had no sufficient interest of his own. His intervention did not fall within any of the extraordinary inherent powers to intervene canvassed by Hutley JA in Corporate Affairs Commission v Bradley.[31]
[31][1974] 1 NSWLR 391, at 397ff. See [2.5] of the CFMEU’s submissions of 5 August 2013, as adopted by its submissions of 12 August 2013.
Focusing more closely on the role actually played by the Attorney-General in the first and second contempt applications, the CFMEU’s written submissions incorporated by reference certain points it had made elsewhere opposing any claim by the Attorney-General for costs.[32] Insofar as presently relevant, the CFMEU made three points here. First, that a respondent should not be exposed to the risk of bearing the costs of a multiplicity of prosecutors. Second, that the Attorney-General did not need to become involved in these proceedings in order to ensure compliance and punishment were achieved, because the amply resourced and ably represented Grocon plaintiffs were able to prosecute the contempts alone. Third, that, once involved, the Attorney-General had added nothing of substance. He had not sought to assist the Court during the liability hearing by presenting any evidence from eye witness police members. His counsel had asked no questions of any witnesses. While he had prepared lengthy written submissions as to liability, and while the Court had summarised and commented on those submissions, they were substantially consistent with the submissions of the Grocon plaintiffs and, for the most part, had added nothing to the arguments and analysis that were otherwise before the Court. In short, the CFMEU contended, the Attorney-General’s joining of this “private litigation” had added nothing of substance to the hearing or determination of it. The CFMEU’s submissions mentioned in passing, but did not comment on, the evidence which, at that stage, the Attorney-General was still proposing to lead in relation to the penalty phase of the first and second contempt applications.[33] Finally, it was observed in the submissions that it remained open to the Attorney-General to seek an audience as an amicus curiae, if the requirements of Priest v West[34] were met.
[32]See outline of submissions in support of removal filed 12 August 2013 [2.3], referring to the outline of submissions on penalty dated 12 August 2013 at [14.10]-[14.17].
[33]Outline of submissions on removal application filed 12 August 2013, [2.4].
[34][2011] VSCA 186.
At the hearing on 19 August 2013, the CFMEU began by adopting its written submissions. It then contended that its application should not be viewed as an “appeal” against the orders I had made on 3 and 13 September 2012 joining the Attorney-General. It noted that those orders had been made ex parte, without a contradictor. On the other hand, the CFMEU acknowledged the validity of certain points that had been made in the Attorney-General’s written submissions, namely that advance notice of each of the applications for those orders had been given to it; that by choosing not to appear in the proceeding at that time the CFMEU had chosen not to oppose the applications; that the CFMEU had given no explanation for its failure to appear; that both of the orders made had expressly reserved liberty to apply and that the first of them had been expressed to operate subject to further order; that both orders had been promptly served; and that, even after the CFMEU had appeared in the proceedings on 20 September 2012 and had commenced to defend them, the CFMEU had not taken advantage of the liberty to apply and had not otherwise applied for the removal of the Attorney-General until it filed the summons of 12 August 2013, and all this notwithstanding that, in the meantime, there had been ten hearing days going to liability, multiple directions hearings or preliminary hearings in advance of the main hearing on penalty and the exchange of numerous written submissions on liability and penalty, including by the Attorney-General.[35]
[35]Transcript, 19 August 2013, pp 2-3. See the procedural history set out in the written submissions of the Attorney-General dated 15 August 2013, as to which history no issue was taken by the CFMEU.
The CFMEU submitted that the lateness of the application had two, but only two, consequences for it, namely, first, that it limited the extent to which the CFMEU could rely upon any prejudice or oppression arising from the existence of two “prosecutors”; and, second, that it made it difficult for the CFMEU to claim any costs in relation to the application for removal.[36] On the other hand, the CFMEU submitted, r 9.06(a) did not require the taking of the point at any particular stage in the proceedings and indeed expressly contemplated applications being made at a later stage in proceedings. Thus the question remained whether the Attorney-General was a proper or necessary party. The CFMEU accepted that it carried the onus to satisfy me that the Attorney-General was not a proper or necessary party in order to justify his removal.
[36]Transcript 19 August 2013, pp 2-3.
As to whether the Attorney-General was a necessary party, the CFMEU referred to two cases relating to applications for the removal of a defendant, as distinct from a plaintiff, namely Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd [No 1][37] and Swindells v State of Victoria & Anor.[38] The CFMEU also referred me to r 9.03, which made certain provision in relation to the joinder of “necessary” parties. Ultimately, however, the CFMEU did not press the significance of the two cases, or of the analogy with r 9.03, acknowledging that it needed to show that, at that stage, the Attorney-General was not even a “proper” party, much less a “necessary” party.
[37][2004] VSC 390 (Hollingworth J).
[38][2012] VSC 457 (Lansdowne AsJ).
In essaying that task, the CFMEU asserted that the Attorney-General’s part in the proceedings had been entirely derivative upon the actions taken by the Grocon plaintiffs; and that the Attorney-General was not seeking to temper any enthusiasm or danger posed by the submissions on sentence of the Grocon plaintiffs. Quite the contrary, asserted the CFMEU.[39]
[39]Transcript, 19 August 2013, pp 6-7.
According to the CFMEU, the Attorney-General did not have a right to become a party to all civil contempt proceedings. It all depended on the facts of the case. The Attorney-General would need to show that it was appropriate to allow him to take part. It would be a matter for the discretion of the court each time. He or she was potentially an appropriate additional party but not necessarily so.[40] The Attorney-General would rarely if ever be a person who “ought to have been joined” within the meaning of r 9.06(b)(i). Usually, the question would be whether, for the purposes of r 9.06(b)(ii), it was just and convenient to determine the contempt matter as between the Attorney-General and the defendant as well as between the original moving party and the defendant.[41] In the present case, the Attorney-General had never said that he would conduct his own contempt proceeding against the CFMEU. Further, all matters which the Attorney-General had pointed to in his written submissions overlapped with the Grocon submissions. There was no issue between the Attorney-General and the CFMEU that was not entirely covered by the issues between Grocon and the CFMEU. It was true, the CFMEU accepted, that the Attorney-General and the Grocon plaintiffs differed between themselves in certain respects in their submissions, but what mattered was whether the submissions made by the Attorney-General could have been made by Grocon or not.[42] Having to face differing submissions was oppressive in a quasi-criminal matter. That went to discretion.
[40]Ibid, pp 8-9.
[41]Ibid, pp 9-10.
[42]Ibid, p 10.
At this stage of the discussion, and again later, I suggested to counsel for the CFMEU that any reliance on oppression might be thought somewhat unreal, in that the parties had exchanged extensive written submissions on the substantive issues well before the application for removal was made and in that the main hearing on those issues was about to begin.[43] In the end, the CFMEU was constrained to submit that any remaining oppression resided principally in the possibility that it might have to face an appeal by the Attorney-General against my ultimate decision in circumstances where Grocon would not have appealed, or in circumstances where the Attorney-General and the Grocon plaintiffs appealed on different grounds. There was obvious tension between that submission of the CFMEU and its submission that the Attorney-General should be removed from the proceeding because he had already achieved his real aim of making sure that the case was not settled.[44]
[43]Ibid, pp 11 and 27.
[44]Ibid, pp 12, 20-21.
The CFMEU mentioned Bovis Lend Lease Pty Ltd v CFMEU[45] and Bovis Lend Lease Pty Ltd v CFMEU (No 2)[46], being the liability judgment and the penalty judgment, respectively, in a contempt case heard in the Federal Court. In that case, the Australian Building and Construction Commissioner had sought to appear by counsel as an intervener.[47] Tracey J initially deferred the question whether the Commissioner had a statutory right of intervention until the end of the liability phase of the contempt proceeding. As it transpired, when that stage arrived, his Honour found it unnecessary to decide the question. His Honour determined that, for the time being, he would treat the Commissioner as an amicus curiae and would have regard to his submissions on liability accordingly. Later, at the penalty stage, his Honour took the view that the Commissioner’s submissions on penalty did not add anything of significance to the submissions of the other parties. It seemed to me that Bovis was distinguishable, because Tracey J did not determine whether the Commissioner had a statutory right to intervene, whereas the Attorney-General has an entrenched and recognised role in his own right in relation to bringing proceedings for contempt of court. The CFMEU seemed to accept that Bovis was distinguishable in this way.[48]
[45](2009) 254 ALR 306.
[46][2009] FCA 650.
[47](2009) 254 ALR 306, 308 [8]-[15]; [2009] FCA 650 at [4].
[48]Transcript, 19 August 2013, p 13 and see now transcript, 28 February 2014, pp 13-15.
Senior counsel for the CFMEU then made a significant, and entirely proper, concession. He conceded that, from the outset, both the Grocon plaintiffs and the Attorney-General had been foreshadowing that they would at the appropriate time be contending that the alleged contempts were criminal contempts, as distinct from civil contempts.[49] That is to say, senior counsel accepted that the moving parties had indicated throughout the hearing of the first and second contempt applications that they would contend that the CFMEU’s alleged breaches of the orders of the Court involved deliberate defiance or contumacy and therefore amounted to criminal contempts.[50] It seemed to me that the CFMEU’s acknowledgement that the case against it had been framed in that way disposed of any force that there might otherwise have been in the CFMEU’s prior written and oral submissions to the effect that the Attorney-General lacked standing in the first and second contempt applications. Asked what else the Attorney-General might appropriately have done except seek to join in, and to remain, as a co-plaintiff in the proceedings, senior counsel for the CFMEU suggested that the Attorney-General might have brought a proceeding himself in the criminal jurisdiction of the court. He submitted that contempt of court can be charged as a misdemeanour. However, he ultimately accepted that any such form of proceeding in contempt matters had long ago fallen into disuse in Victoria.[51]
[49]Transcript, 19 August 2013, p 13.
[50]Witham v Holloway (1995) 183 CLR 525, 530.
[51]See BHP v Dagi [1996] 2 VR 117 at 126 (Winneke P) and 174 (Phillips JA).
As to the fact that the Grocon plaintiffs had commenced their contempt applications very swiftly, leaving little or no time for the Attorney-General to have moved first, senior counsel for the CFMEU submitted that, nevertheless, it was incumbent on the Attorney-General to show that he would have commenced his own contempt proceedings if the Grocon plaintiffs had not commenced theirs. I could see no warrant for any such requirement. Given the traditional role of the holder of the office of Attorney-General, it seemed to me, and I suggested to senior counsel for the CFMEU, that the question whether it was appropriate for the Attorney-General to commence a contempt proceeding or to apply to join in a contempt proceeding was a matter for the determination of the Attorney-General, rather than a matter for the Court.[52] Senior counsel for the CFMEU responded that it would be an unusual step for an Attorney-General to seek to become a party. I then sought comment from senior counsel on the decision of Merkel J in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[53] to which reference had been made in the Attorney-General’s written submissions. In that case, the Australian Industry Group had obtained orders that each of two union officials pay a fine of $20,000. It declined to seek to enforce the fines. The question then arose whether the Commonwealth Attorney-General should become involved and should proceed against the individuals for contempt of court for omitting to pay the fines. The Commonwealth Attorney-General indicated a disinclination to become involved. Merkel J expressed considerable surprise at the Attorney-General’s attitude. Clearly, his Honour was of the view that the Attorney-General ought to proceed to enforce payment of the fines. His Honour’s observations were later referred to with approval by Black CJ (with whom Finkelstein J agreed) in Clampett v Attorney-General of the Commonwealth of Australia.[54] Black CJ said:
The essential point here is that the undoubted responsibility to protect the courts of the Commonwealth – whatever its extent and whatever its content might be in any particular instance – rests with the Attorney-General of the Commonwealth as Her Majesty’s responsible minister of state: see ss 64 and 61 of the Constitution. See also Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia & Ors[55] in which Merkel J held ([188 ALR] at 655) that the “Attorney-General is the appropriate officer of the state to represent and safeguard the public interest in vindicating the authority of its courts”.
[52]Transcript, 19 August 2013, p 17. See Barton v The Queen (1980) 147 CLR 75, especially 90-96; Magaming v R (2013) 302 ALR 461 [20], [68]. And see now Barbaro [2014] HCA 2, [47].
[53][2001] FCA 774.
[54][2009] FCA 151 at [80].
[55][2001] FCA 774; (2001) 188 ALR 653.
The response of senior counsel for the CFMEU was to repeat that there seemed to be no possibility of the Grocon plaintiffs failing to carry the proceeding through to the “bitter end”. However, as I put to senior counsel at the time, for all the Court knew, the Grocon plaintiffs might not proceed any further or might not seek to enforce any fine. The latter was exactly what had happened in the Australian Industry Group case. There followed a discussion about the prospect of appeals. The CFMEU contended that the prospect of an appeal by the Attorney-General was oppressive. I was not persuaded by that submission. It seemed to me that if an Attorney-General was a proper party to a contempt matter at first instance then he or she was very likely to be a proper party to any appeal.
In any event, in the present case, certain issues remained to be determined at first instance. Different submissions were being advanced as between the Grocon plaintiffs and the Attorney-General on some of them, including on the question whether I could take into account (on the matter of specific deterrence) certain cases cited by the Attorney-General (but not by the Grocon plaintiffs) concerning past behaviour by certain individual union officials, as distinct from the CFMEU itself. I asked senior counsel why the Attorney-General was not entitled to be heard on those issues. Senior counsel submitted that there were two reasons. First, that the Attorney-General’s traditional role was not as extensive as he had asserted. Second, that the margin of difference between him and the Grocon plaintiffs was so small as to be meaningless. The first point had already been dealt with in my discussions with senior counsel. As to the second point, it seemed to me, and I put it to senior counsel, that if there was so little between the Attorney-General and the Grocon plaintiffs, then any oppression from differential prosecution cases was correspondingly diminished.
Senior counsel for the CFMEU then submitted that the continuing presence of a third party such as the Attorney-General was bound to make it more difficult to achieve a resolution of the proceeding. This was said to be a further element of oppression. On the other hand, senior counsel agreed that it was possible that all three parties might come to an agreement as to how the proceeding should be determined. Moreover, whatever the parties might agree upon, they could not dictate any particular outcome to the Court, nor prevent the Court from initiating its own contempt proceeding should the Court think fit to do so.[56]
[56]Witham v Holloway (1995) 183 CLR 523, 533.
Next, senior counsel for the CFMEU conceded that it was not necessary for the Attorney-General to fall within one of the categories referred to by Hutley JA in Corporate Affairs Commission v Bradley[57]. That is to say, the CFMEU accepted that there was nothing in Bradley that shut the Attorney-General out. On the other hand, according to the CFMEU, more would be needed before, in a particular case, any court would permit the oppression involved in having two prosecutors in a quasi-criminal proceeding. However, it seemed to me that there was little, if any, prospective oppression of which it could legitimately complain at that late stage.
[57][1974] 1 NSWLR 391 at 397ff.
Then, in accordance with the last part of its written outline, the CFMEU submitted that, on a review of all that had happened in the case to date and of the (so-called) small differences that remained between the Grocon plaintiffs and the Attorney-General, the Court might reduce the role of the Attorney-General to that of an amicus curiae, subject to his satisfying the requirements referred to in Priest v West.[58] However, this submission encountered the difficulty that the traditional role of the Attorney-General in protecting the authority of the courts by initiating and maintaining proceedings for contempt distinguished this case from Priest v West, where the Court refused to allow the Minister responsible for the Coroners Act 2008 to participate in the case by making submissions as to the true interpretation of that Act.
[58][2011] VSCA 186.
I suggested to senior counsel for the CFMEU that, in the light of all that had been done already in the case, any further argument about removal of the Attorney-General may not be the best use of the Court’s time. Senior counsel responded by referring again to the oppression involved in facing two prosecutors and the prospect of differential appeals. However, he accepted that in every instance where an Attorney-General was joined to a proceeding of this kind there would by definition be two prosecutors and the prospect of differential appeals. He further accepted that, had the CFMEU appeared at an early stage and challenged the Attorney-General’s position, then the particular role to be played by the Attorney-General in this particular case might have been clarified or limited. However, that was water under the bridge. That concluded the CFMEU’s submissions on the application to remove the Attorney-General.
Senior counsel for the Attorney-General made brief oral submissions in which he adopted two sets of written submissions each dated 15 August 2013, one dealing directly with the present application (and concentrating on discretionary matters) and the other dealing principally with the Attorney-General’s application to join in the third contempt application (and concentrating on matters of status and principle). Senior counsel for the Attorney-General submitted that the Attorney-General was a proper party for the reasons that I had identified in my discussions with counsel for the CFMEU. He submitted that it would be quite ridiculous for the Attorney-General to have to initiate separate proceedings. He said that for the CFMEU to have to face two separate proceedings when the subject matter of each had so much in common would represent true oppression. He submitted that this was the point of the rule of court permitting joinder and that there were no good discretionary reasons why the Attorney-General should be removed at the last stage of the hearing. Finally, he submitted that there was no oppression, but that, if any risk of oppression were perceived, it could be accommodated by making orders as to the management of the case and as to costs, including, if thought fit, an order relieving the CFMEU from any liability to pay the Attorney-General’s costs.
As I then indicated, I accepted those submissions of counsel for the Attorney-General. I was far from being satisfied by the CFMEU that the Attorney-General was not a proper party to the first and second contempt applications. Indeed, the moving parties having foreshadowed from the outset that criminal penalties would be sought, and the CFMEU itself having contended in writing that the proceedings, though pursued under the civil rules, were “criminal or quasi-criminal in nature as almost all contempts are today”,[59] I was entirely satisfied that the Attorney-General had standing to be joined to the applications. The Attorney-General had been entitled to adopt, and had adopted, an independent approach to the applications. He had instructed independent counsel and solicitors. Although his case was basically similar to that of the Grocon plaintiffs, there were differences and the differences were greater than the CFMEU had been prepared to acknowledge for present purposes. On the other hand, given the lateness of the hour, there was little or no prospect that the CFMEU would face any substantial future difficulties (or, at least, any difficulties of which it could legitimately complain) as a result of the continued presence of the Attorney-General or as a result of the possibility that the Attorney-General might bring an appeal, either alone or as a co-appellant. The CFMEU had left its objection far too late. The discretionary considerations all pointed in favour of allowing the status quo to remain.
[59]Written submissions dated 5 August 2013, [2.10].
In short, the CFMEU had not persuaded me that the Attorney-General was not a proper party to the proceedings and had not persuaded me that I should order his removal. Accordingly, I refused the orders sought by the CFMEU’s summons.
Application for joinder to the third contempt application
The question whether the Attorney-General should be added as a co-plaintiff to the third contempt application remains alive despite the CFMEU’s lack of success in having the Attorney-General removed from the first and second contempt applications. This time, the burden of persuasion is on the Attorney-General and the relevant provisions are those contained in paragraph (b), rather than paragraph (a), of r 9.06 of the Rules.[60] The Attorney-General relies principally on sub-paragraph (ii) of r 9.06(b), but also on sub-paragraph (i).[61] The general considerations on which he relies in support of his joinder are essentially the same as before.
[60]See above.
[61]Transcript, 14 November 2013, p 110.
From the outset, the Attorney-General and the CFMEU have been content that, pending the final determination of the joinder application, the Attorney-General should participate in the conduct of the third contempt application on a provisional basis, in the capacity of an applicant for joinder. That arrangement suited both sides. The Attorney-General was able to wait and see how the case developed and to make provisional contributions from time to time as he saw fit without risk of being excluded from the third contempt application before it came to an end. This course was also acceptable to the CFMEU because the CFMEU wished to be able to support its resistance to the joinder of the Attorney-General by referring to what the Attorney-General had actually said and done on the provisional basis.
In the course of the oral hearings on 14 and 15 November 2013 and in their previous written submissions, the Attorney-General and the CFMEU traversed a wide area in debating the question of joinder. However, the debate has since been narrowed somewhat as a result of the abovementioned recent decision of the Court of Appeal in CFMEU v Boral Resources Pty Ltd[62] dismissing the CFMEU’s application for leave to appeal from the judgment of Digby J given at first instance in that matter.
[62][2013] VSCA 378.
Boral was a very similar case to the present. The plaintiffs were private companies in the Boral Group. In August 2013 they had brought a contempt summons against the CFMEU under Order 75 of the Rules, alleging that the CFMEU had disobeyed orders made by this Court restraining the union from blocking access to a work site. The Attorney-General had applied to be joined as a co-plaintiff to the contempt summons. Apparently, in Boral, the Attorney-General confined himself to reliance upon sub-paragraph (ii) of r 9.06(b), as distinct from sub-paragraph (i). However, he relied on much the same general considerations as those upon which he has relied in the three contempt applications before me. The CFMEU opposed the joinder application. It relied on a range of arguments, including arguments similar to those I have outlined above in elaborating on my reasons for refusing the CFMEU’s application to remove the Attorney-General from the first and second (Grocon) contempt applications. However, Digby J was satisfied that it was appropriate to grant the Attorney-General’s application for joinder. The CFMEU sought leave to appeal. The application for leave was heard and determined by Osborn and Beach JJA on 13 December 2013. The leading judgment was given by Beach JA. It seems that, once again, the argument centred around sub-paragraph (ii) of r 9.06(b). The sole ground of the CFMEU’s proposed appeal was to the effect that Digby J had erred in finding that r 9.06(b)(ii) of the Rules permitted a person to be joined to a proceeding for a charge of contempt pursuant to Order 75. The CFMEU advanced two arguments in support of this ground. First, it contended that the contempts with which it was charged were criminal contempts, and then said that “civil procedure does not apply to criminal contempts”.[63] Secondly, the CFMEU submitted that regardless of whether the contempts were classified as civil or criminal, and even if some rules of civil procedure applied, r 9.06(b)(ii) did not apply to contempt proceedings because that provision only applied to proceedings for “claims” as distinct from “a proceeding for a charge”.[64]
[63][2013] VSCA 378, [8].
[64]Ibid.
Beach JA noted that the CFMEU’s first argument was to be contrasted with the argument it had run below. Before Digby J, the CFMEU had contended that the contempts were civil contempts and that, for that reason, the Attorney-General did not have standing. Those submissions had not found favour with Digby J and, in pursuing its first point in the Court of Appeal, the CFMEU now contended that the contempts with which it was charged were criminal contempts.
In rejecting the CFMEU’s first point, Beach JA held that, whilst some of the rules of civil procedure might not apply to a contempt application, others would or might apply.[65] Further and more particularly, Beach JA held that, while the operation of any rule of court that cut across protections or privileges given to an accused facing criminal charges might need to be mediated so as to ensure a fair trial of those charges without the loss of relevant privileges and protections, r 9.06 was not a rule that came within that potential class of rules. Pertinently to the present case, Beach JA went on to say:[66]
The Attorney-General has standing to bring a proceeding alleging the same contempts as are currently alleged in the contempt summons. The applicant accepts, and accepted below, that the Attorney-General has power to protect civil proceedings by applying for the punishment of contempts affecting those proceedings. The only caveat the applicant placed on that proposition below was that this concession was only made in relation to criminal contempts. That caveat is no longer relevant – the applicant contending that the present contempts are criminal contempts. In any event, had it been necessary to determine, I would have determined that it is at least seriously arguable that the Attorney-General has similar standing to bring proceedings for civil contempts as he has to bring proceedings for criminal contempts. At the very least in my view, the question is sufficiently arguable to justify permitting the Attorney-General to intervene in a proceeding where a point in issue might be whether the contempt alleged is civil or criminal.
[65]Ibid [10].
[66]Ibid [11] (footnote omitted).
Turning to the CFMEU’s second argument, Beach JA described it as involving an overly narrow construction of the words “any claim in the proceeding” in r 9.06(b)(ii). His Honour explained this conclusion in words which, once again, have pertinence to the present case, as follows:
Rule 9.06 is designed, amongst other things, to enhance the efficient and economic resolution of proceedings heard in the civil jurisdiction of the Court. The Rules generally (and this rule specifically) should not be given some narrow construction which would exclude from its operation any particular class of cases heard in the Court’s civil jurisdiction. The words “any claim in the proceeding” are designed to pick up every type of claim that might be made in the civil jurisdiction of the Court by one party against another. In appropriate cases, one might envisage claims for injunctions or claims for declarations – including a claim for a declaration that a party be adjudged guilty of contempt of court.
It followed that, in the view of Beach JA, the judgment of Digby J was not attended with sufficient doubt to justify a grant of leave to appeal. Beach JA added that, in any event, leaving the order below unreversed would not involve any relevant significant prejudice to the applicant. His Honour said:[67]
The Attorney-General having standing to commence a proceeding for criminal contempts (and at least arguably also in respect of civil contempts – although it is not necessary to decide that matter determinatively today), he could, in the absence of the order below, have commenced a proceeding against the applicant alleging the same contempts (although there is no question that the applicant could be punished twice in respect of the same matters). Such a proceeding would almost certainly be heard together with the contempt summons (in order to avoid a multiplicity of proceedings, and in order to ensure that both proceedings are conducted efficiently and economically). At trial, one would expect the various proceedings to be managed in a way that permitted each party’s interests to be dealt with appropriately – and without imposing any undue burden on the applicant.
That said, in my view, there would be nothing to be gained by requiring the Attorney-General to commence a separate proceeding – with potentially greater duplication and expense than might be occasioned by permitting the Attorney-General to be a party in the present proceeding.
His Honour could have chosen to let the Attorney-General intervene in the contempt summons. If his Honour had done so, then the Attorney-General would (subject to any other order) have enjoyed the rights of a party. Even if I was persuaded that his Honour’s order was attended by doubt (which I am not), I do not accept that leaving it unreversed occasions any significant prejudice to the applicant.
For these reasons, I would dismiss the applicant’s application for leave to appeal.
[67] Ibid [14]-[17].
Osborn JA agreed that the application for leave to appeal should be dismissed for the reasons stated by Beach JA, subject only to some short additional comments. Osborn JA observed that a number of the matters that had been urged upon the Court by the CFMEU went to matters which might properly be thought to have affected the exercise of the discretion of Digby J. A party faced a heavy burden in seeking to challenge in the Court of Appeal the exercise of a discretion by a trial judge with respect to interlocutory orders. Further, insofar as the CFMEU emphasised the possibility of oppressive results, the basis on which joinder had been sought and obtained before Digby J met a number of potential sources of oppression which were identified. In particular, joinder had been sought so that the Attorney-General might obtain orders that the defendant be punished for contempt of court expressly in accordance with the statement of charge set out in the schedule to the Boral plaintiffs’ summons and, secondly, so that the Attorney-General might make submissions and/or lead evidence in the contempt application to the extent only that such submissions and/or evidence did not duplicate those of the Boral plaintiffs. Osborn JA observed that those limitations provided a proper framework within which to prevent unfair procedural prejudice to the CFMEU.
One of the provisional conclusions upon which I had invited the comments of the parties in my memorandum of 14 February 2014 was that the effect of the decision in Boral is to confirm that r 9.06(b) of the Rules is an available source of power to join the Attorney-General to the third contempt application. In their responsive written submissions, each of the CFMEU, the Attorney-General and the Grocon plaintiffs expressed their agreement with that provisional conclusion. The Attorney-General commented, accurately, that this removed an argument previously relied on by the CFMEU in opposition to the proposed joinder, which was that the Court had no power under the Rules to join the Attorney-General.
The CFMEU maintained, however, that the Attorney-General should not be joined in this case for other reasons previously advanced in argument. In particular, the CFMEU made reference again to the two judgments of Tracey J in the Bovis Lend Lease contempt matter which I have discussed above. The CFMEU here mentioned again that at the end of the liability phase in Bovis Tracey J had treated the regulator as an amicus curiae in view of the limited role the regulator had played up to that time, and that, at the end of the penalty phase, Tracey J ultimately declined to allow the regulator to intervene on penalty at all. Responding to these submissions concerning Bovis, the Attorney-General submitted, as he had done before, that the Attorney-General was not analogous to a regulator because of his special position in the Victorian legal system and his acknowledged standing to bring contempt proceedings in his own right.[68] At the oral hearing on 28 February 2014, I discussed the Bovis decisions with senior counsel for the CFMEU yet again. Senior counsel acknowledged that Tracey J had not seen fit to determine the question of the regulator’s technical standing.[69] Nonetheless, senior counsel invited me to take the kind of course that Tracey J had taken in Bovis. That is to say, senior counsel submitted that I could choose not to rule on the Attorney-General’s application for joinder as a party but merely treat the Attorney-General as having made submissions as an amicus curiae. However, if I felt constrained to determine the application, then, according to the CFMEU, I should determine that the Attorney-General did not qualify to be joined as a party under r 9.06. By this, I did not take the CFMEU to be resiling from its earlier concession that the effect of the decision of the Court of Appeal was that r 9.06 was an available source of power to join the Attorney-General. Rather, I understood the CFMEU to be reiterating its prior submissions to the effect that I should assess the Attorney-General’s application in the light of his actual (provisional) involvement, comparing that to the way in which the Grocon plaintiffs had proceeded.[70]
[68]Citing, as before, Boral [2013] VSC 572 at [60]-[70] (Digby J) and, in addition, CFMEU v Boral [2013] VSCA 378 at [11] (Beach JA).
[69]Transcript, 28 February 2014, pp 14-15.
[70]Transcript, 28 February 2014, pp 15.
I do not think that it would be appropriate to decline to determine the Attorney-General’s application for joinder. It has been fully argued. Moreover, I consider that the decision of the Court of Appeal in Boral makes clear that the Attorney-General has standing to bring contempt proceedings of his own in respect of an alleged breach of a court order, at least where it is contended that the breach was criminal in nature; and that that, in turn, gives the Attorney-General at least a good prima facie claim to be joined to contempt proceedings of that kind brought by private plaintiffs.[71] I accept that, for the purposes of r 9.06(b)(ii), the Attorney-General would still need to persuade the Court that it was just and convenient to join him; or, where reliance was placed on r 9.06(b)(i), that his joinder was “necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon”. On the other hand, the Boral judgments (both at first instance and on appeal) indicate that, usually, it would not be a proper exercise of the Court’s power under r 9.06(b) to, in effect, require the Attorney-General to commence a separate proceeding. Indeed, it may well be that, where contempt proceedings are brought by a private plaintiff in relation to breach of a court order, and where it is alleged, or sought to be alleged, that the contempt was criminal, the Attorney-General should be regarded as “a non-party whose interests would be directly affected by a decision in the proceeding, that is, one who would be bound by the decision” and therefore “entitled to intervene to protect the interest likely to be affected”. That, however, need not be finally decided in this case.[72]
[71]See also Clarke v Chadburn [1985] 1 WLR 78 (Megarry J), 82-83.
[72]Roadshow Films Pty Ltd v iiNET Pty Ltd (2011) 284 ALR 222, 223-4 (High Court of Australia). My emphasis.
In relation to the subject matter of this third contempt application, the Attorney-General desires to contend that the two contempts found should be treated as criminal contempts and that convictions for them should be entered accordingly. That contention of the Attorney-General must surely be heard and determined by this Court, in one way or another. Short of, in effect, compelling him to commence a fresh proceeding and to conduct it separately from the present proceeding, the only sensible and sure way in which this Court can give effect to the Attorney-General’s desire to advance that contention and to obtain a binding judicial determination on it is to admit him as a party to this contempt application. Importantly, the Attorney-General’s desire to contend that the contempt found is criminal rather than civil brings this case within the category referred to by Beach JA in Boral[73], namely “a proceeding where a point in issue might be whether the contempt alleged is civil or criminal”.
[73]Ibid [10].
In its written submissions,[74] the CFMEU acknowledges that the Attorney-General seeks heavier sanctions than the Grocon plaintiffs but contends that this provides no basis to permit his joinder (or intervention). On the contrary, the CFMEU submits, it merely illustrates the oppression and injustice of multiple prosecutors. The submissions continue:[75]
[74]Filed 12 November 2013.
[75]Ibid [4.2].
Multiple prosecutors create oppression
•they create an inequality of arms against the Defendant;
•they expand the scope of the case;
•they hinder the timely settling of issues of disclosure, evidence, matters in issue and admissions of fact;
•they complicate penalty submissions;
•they multiply the cost of proceedings;
•they create an unfair incentive to accept liability to avoid the crushing costs burden visited upon a convicted defendant.
Most of these dangers are present in this case.
I acknowledge that multiple prosecutors can potentially give rise to any or all of those “dangers”. As far as ordinary criminal proceedings are concerned, no party referred me to any example of a type of case where multiple prosecutors would be involved, and I am unaware of any. On the other hand, as mentioned above, proceedings for contempt constituted by breach of a court order or undertaking are not ordinary criminal proceedings. That remains true even if there be no doubt that the alleged contempt, if found, would amount to a criminal contempt. Still, as Digby J recognised in Boral,[76] even in civil proceedings there is a general rule that a defendant should not be required to face two sets of plaintiff representatives.[77] However, exceptions are sometimes made in civil proceedings.[78] In any event, I think I am obliged to treat contempt proceedings of the present kind as a special case. In Boral, each of Digby J, Beach JA and Osborn JA took into account the question of alleged oppression. Each took the view that the risk of injustice to the CFMEU could be controlled and minimised by appropriate procedural orders. Digby J added that he did not consider that a defendant could legitimately rely upon the added difficulty of negotiating a resolution of the contempt proceeding.[79] I consider that I should follow Digby J in that regard and I would in any event take the same view.[80] Nevertheless, I accept that the involvement of a second prosecutor can add to the scope, burden, complexity and cost of proceedings. That has in fact happened to an extent in the present case. Of course, the novelty of the Attorney-General’s applications for joinder and the extensive debates about his role have themselves added significantly to the length, complexity and costs of the three Grocon contempt applications regarded as a whole. On the other hand, the Attorney-General has not pushed strongly for any orders in his favour as to costs and, as will be seen, I do not propose to order that the CFMEU pay any of the costs of the Attorney-General.
The BHP case related to conduct in the year 2000. It involved a breach of Federal Court orders whereby the CFMEU failed to immediately cease strike action (that is, the authorisation of members to stop performing work at BHP’s mines in New South Wales). The action was a stoppage of work of one day’s duration. The Grocon plaintiffs submit, correctly in my opinion, that those facts are very different from the present matter, and far less serious. As the Grocon plaintiffs submit, the Full Court of the Federal Court overturned a decision at first instance to impose a fine of $120,000 and reduced the fine to $50,000.[250] One of the considerations deemed relevant by the Full Court was that the trial judge had made an order that the CFMEU pay the costs of BHP on an indemnity basis. The relevant breach involved a CFMEU official acting in such a way as to ensure that strike action would go ahead despite a court order to the contrary. The action took place over a short period of time.
[250](2003) 196 ALR 350.
In Bovis,[251] the CFMEU was found “guilty” of contempt in relation to incidents on 19 and 23 February 2009 respectively when it prevented vehicles from entering the Royal Children’s Hospital building site in Parkville, Victoria. The Grocon plaintiffs make the point that, although in those two specific incidents vehicles were prevented from entering the site, work was otherwise able to continue. They further point out that the number of men standing in the driveway on the day of the incident was up to approximately eight. The largest crowd was approximately 20 people on 22 February 2009, but that was not a day on which a contempt was found to have been committed. A fine of $75,000 was imposed and indemnity costs were ordered by Tracey J.
[251](2009) 254 ALR 306.
In Alfred,[252] the Court imposed a fine of $150,000 and ordered that the CFMEU pay Inspector Alfred’s costs on an indemnity basis agreed at $150,000. The relevant conduct involved a blockade of a site in Epping at which the new wholesale fruit and vegetable market was being constructed. Contrary to the Court’s orders, during the period from 21 May to 28 May 2010, the CFMEU did not refrain from preventing or hindering the access of persons and vehicles to the site. The CFMEU pleaded guilty to this charge. The parties had jointly submitted to Tracey J that an appropriate fine for the contempt would fall within the range of $100,000 to $175,000. The figure of $150,000 selected by his Honour fell within that range. Since the judgment in Barbaro[253] and, at least for this Court, since the decision in ASIC v Ingleby,[254] there must be a real question about the weight to be given to the quantum of penalty imposed in such circumstances in an earlier case. Further, I note that in Alfred the Court also imposed a pecuniary penalty of $100,000 on the CFMEU in respect of contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) which arose out of the same course of conduct as gave rise to the charges of contempt of court.[255]
[252][2011] FCA 557 (2 June 2011, Tracey J).
[253][2014] HCA 2.
[254][2013] VSCA 49.
[255]Alfred [2011] FCA 557, [39].
In FWBI Inspectorate v CFMEU,[256] the finding of contempt was made on 4 September 2012, namely just after the Emporium site conduct and just one day before the McNab site conduct. To the extent that the decision was given after the Emporium site conduct, it does not count as a prior “conviction”. Nevertheless, the Court can have regard to it in a limited sense.[257] The relevant conduct had occurred on 2 February 2011 and 10 June 2011 in breach of orders that had been made on 23 June 2009. The contempt was not knowing or wilful. Still, the Court regarded the breaches as a serious matter and accepted that the penalty for each contempt, as agreed to by the CFMEU ($50,000 in respect of the conduct on 2 February 2011 and $50,000 in respect of the conduct on 10 June 2011) was appropriate in all the circumstances. I repeat that, as a result of Barbaro and Ingleby, this Court must be cautious in having regard to the outcome in FWBI Inspectorate v CFMEU. In any event, as the Grocon plaintiffs point out, the circumstances of that case were very different to those of the present matter. The case involved specific conduct by one of the CFMEU’s officials (Joseph McDonald), for which the CFMEU was liable, of engaging and being involved in strike action on 2 February 2011 and 10 June 2011 at the Queens Riverside Project in Western Australia. Essentially, Mr McDonald had directed that strike action take place on those specific days. Some associated picketing was involved but only about 20 persons were involved. I accept that that matter was on a lesser scale than the present matter.
[256][2012] FCA 966 (4 September 2012, Buchanan J).
[257]Woodside Burrup v CFMEU [2011] FCA 949 (Gilmour J) [48(4)].
The Attorney-General appended to his original written submissions on penalty what he described as a table summarising prior findings by courts of contempts (or analogous conduct) by: (i) the CFMEU and (ii) those officials of the CFMEU named in the reasons on liability as persons involved in the present contraventions. However, in the very next paragraph of the submissions, the Attorney-General said:
As a general principle, when determining a penalty for contempt, the relevant history of the offender includes, and is limited to, other findings of contempt or similar conduct.
For that proposition, the Attorney-General cited R v Vasiliou (No 2),[258] R v Giscombe[259] and Scott v Evia.[260] I have had particular regard to the two Victorian decisions. Those decisions indicate that the Court should take into account only other findings of contempt and should treat as entirely irrelevant the existence of prior convictions of any other kind. That approach accords with the submissions of the Grocon plaintiffs. I have found no Australian contempt case which permits a different view to be taken. It may have been different if the matter before this Court had involved alleged breaches of industrial legislation.[261] I do not accept that the strong statements (to the effect just indicated) contained in the Victorian cases can be got over in the way indicated in the Attorney-General’s written submissions,[262] namely by saying that the conduct described in those earlier matters “may be relied upon as a general circumstance that informs the importance of specific deterrence in this case”. Accordingly, I propose to have no regard to any of the matters set out in Appendix 3 to the Attorney-General’s submissions except the four contempt cases upon which the Grocon plaintiffs also rely.
[258][2012] VSC 242, [5 scil, 8].
[259](1983) 79 Cr App R 79, 84.
[260][2007] VSC 15, [179].
[261]Woodside Burrup Pty Ltd v CFMEU [2011] FCA 949, [48] (Gilmour J).
[262]Attorney-General’s written submissions filed 21 June 2013, [71].
I turn now to the CFMEU’s financial means. As mentioned several times above, the CFMEU accepts that it is a large, representative organisation, as it was described by Tamberlin and Goldberg JJ in the BHP case.[263] It is also common ground that the CFMEU has substantial financial means. The most up to date agreed figures concerning the CFMEU’s financial resources are set out in the written reply submissions of the Grocon plaintiffs filed in the first and second contempt applications by reference to an attached financial report for the year ended 31 December 2012. That report shows that the CFMEU Victorian/Tasmanian Branch provisioned $2 million for legal settlements, a figure which may be compared with $85,000 for the previous financial year. The report also shows that the cash at bank and short term deposits of the Branch amount to $12,382,559. The Branch’s cash flow from operations is shown at $7,160,522. Its net assets are $51,931,494. Both the Grocon plaintiffs and the Attorney-General submit that the CFMEU can easily afford to pay very large fines.
[263](2003) 196 ALR 350, 358 [40].
In response, the CFMEU acknowledges that it has no relevant inability to pay a fine. However, it submits that because it is a representative body, a large fine will ultimately be paid for by its membership, who are working people, citing R v Wattle Gully Gold Mines N/L.[264] The CFMEU further submits[265] that evidence that it has adequate resources to pay a substantial penalty and actual indemnity costs is not relevant to penalty unless it is claiming financial hardship in mitigation of penalty, which it is not. It submits that a rich person does not pay a higher penalty than someone of moderate means simply by dint of having more money to spare.
[264][1980] VR 62. See CFMEU’s outline on penalty filed 12 August 2013, [5.5].
[265]Written submissions on penalty in the third contempt application filed 10 October 2013.
As to the first of the CFMEU’s points in this regard, I note that the same point was addressed to Tracey J in Bovis.[266] I agree in substance with the response of Tracey J to the point.[267] In particular, I agree with Tracey J that the prospect that the fine will ultimately impact on the membership of the union is of little weight where, as in this case, the conduct is not that of rogue members or officials, but rather is that of elected officials who were acting in the course of their duties. As his Honour said, if the members are dissatisfied with the conduct of the officers who have engaged in or condoned the offending conduct, they may vote against them when they next stand for election.
[266][2009] FCA 650.
[267]Ibid [18]-[21].
As to the CFMEU’s second response in relation to its financial means, I consider that its response is directly contrary to the well-established principle that the contemnor’s means are relevant.[268] The CFMEU is not an individual person. As just discussed, it is a body that represents many thousands of people. It is a commonplace of legislation that maximum penalties, both criminal and civil, differ greatly as between individuals and corporations. Very frequently, if a large corporation and an individual are both found guilty of related offences, or are both found to be liable under civil penalty provisions in respect of related conduct, the corporation will be ordered to pay a far greater pecuniary penalty than the individual.
[268]Stuart-Mahoney v CFMEU (2008) 177 IR 61; Woodside Burrup[2011] FCA 949 (Gilmour J) [69].
Accordingly, I do propose to take into account the financial means of the CFMEU.
The final “consideration” in the standard list is whether the contemnor has exhibited general contrition and made a full and ample apology. In the first and second contempt applications, the CFMEU initially ignored the Court. Later, it contested its liability. It has made no apology. It does not claim remorse.
On the other hand, I accept that the fact that the Union has offered no apology cannot be regarded as an aggravating feature of the contempt. In BHP Steel (AIS) Pty Ltd v CFMEU,[269] Kiefel J said:
Whilst the lack of an apology is not an aggravating circumstance, such as might increase the penalty, the making of an apology can operate to reduce a penalty, at least where it can be seen to render it unlikely that the conduct will be repeated in the future. The respondent has elected not to take that course.
The same applies here.
[269][2001] FCA 336, [10]. See also Bovis [2009] FCA 650 [42].
I should say something more about the factor of deterrence, both general and specific. It was common ground that both general and specific deterrence were relevant matters in this case. Indeed, the moving parties put great emphasis on deterrence. As to general deterrence, they rightly pointed out that it would be destructive of the rule of law if the idea spread that compliance with court orders was optional. As to the CFMEU itself, they pointed not only to the prior findings against the union of contempt to which I have referred, but also to the abovementioned comment of Mr Setka made to a journalist shortly after the handing down of my reasons on liability on 24 May 2013 and published in the Herald Sun newspaper. Setka was reported as stating to the media that “It’s not the first time or the last time a union is found guilty of contempt.” He said that the members of the CFMEU “want [it] to maintain a militant union” and that “[u]nfortunately, the price of that is that we will get fines”.
The Attorney-General submits, and it is obviously true, that the imposition of a penalty for contempt of court should not be viewed as simply an anticipated cost of industrial action. As he further submits, few things could be more destructive to the authority of the Court and to the rule of law than the idea that fines or similar punishment are akin to a tax that, once budgeted for, enable the use of unlawful conduct to achieve industrial outcomes.[270]
[270]Attorney-General’s written submissions on penalty filed 21 June 2013, [84].
In Pennicott Wilderness Journeys Pty Ltd v Tasmanian Cruises and Charters Pty Ltd,[271] in handing down penalties for certain contempts of court committed by two individuals, Marshall J said:
[271][2013] FCA 966, [3].
The financial penalties should be sufficient to give due weight to specific and general deterrence and to reinforce the concept that breach of court orders should not be seen as part of the price of doing business.
Likewise, in Singtel Optus Pty Ltd v ACCC,[272] a case relating to the assessment of pecuniary penalties for false advertising under the Trade Practices Act 1974 (Cth), Keane CJ, Finn and Gilmour JJ said:
Optus cannot be regarded as a “first offender”. It failed to observe the requirements of the Act, and not for the first time. The absence of a satisfactory explanation for the contraventions and the evident laxity in its internal compliance program mentioned by the primary judge means that Optus has given the court no reason to be confident that, in the absence of a very substantial penalty, it will not regard as acceptable the risk of a fine for contravention. The court must fashion a penalty which makes it clear to Optus, and to the market, that the cost of courting a risk of contravention of the Act cannot be regarded as acceptable cost of doing business.
The Full Court, notwithstanding that it allowed Optus’ appeal and set aside the penalty imposed below, itself imposed a total penalty of $3,610,000 in relation to a total of eleven advertisements that were published in breach of the Act. The principles set out in Singtel were recently applied by Marshall J in Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd.[273] There, Marshall J imposed a total penalty of $3,000,000 on Dimmeys Stores Pty Ltd for importing and selling consumer goods that failed to comply with Australian product safety standards.
[272](2012) 287 ALR 249, 266 [68].
[273][2013] FCA 1371, especially at [27] and following.
It is true that the Trade Practices Act 1974 prescribed very high monetary penalties for breaches. In contempt, of course, there are no corresponding provisions. On the other hand, penalties for contempt are, in a sense, at large.
Unsurprisingly, the CFMEU has placed significant emphasis on the comparatively modest amounts that were awarded against it in the four cases upon which the moving parties rely as (in effect) prior convictions of the CFMEU for contempt. However, I have already indicated reasons why this Court should only pay limited regard to those cases. I do note, as the CFMEU urges me to, that in Alfred[274] the CFMEU had been found guilty of contempt in respect of what was described as a full blockade of the Melbourne Market Relocation Project site for a period that stretched between 21 May 2010 and 28 May 2010. The fine imposed for contempt was “only” $150,000. That was, however, additional to an order that the CFMEU pay $150,000 by way of indemnity costs of the applicant’s motion for contempt. It was also additional to a fine of $100,000 in respect of contraventions of the BCII Act, as mentioned above. But the most important distinguishing feature of that case is that the CFMEU had pleaded guilty and the parties had jointly submitted an appropriate penalty range of $100,000-$175,000. In the present case, the CFMEU did not plead guilty and there is certainly no agreement about the range. Nor could there be, having regard to Barbaro[275] and Ingleby.[276]
[274][2011] FCA 557.
[275][2014] HCA 2.
[276][2013] VSCA 49.
In my opinion, the four prior CFMEU contempt cases do not establish a tariff or range for the purposes of the present case. Nor do any other cases. I do not ignore the amounts determined in the four specified cases, but I do not regard myself as being bound to any range as a result of those cases or otherwise.
On the other hand, the pattern of repeated defiance of court orders by the CFMEU revealed by those four cases is very troubling. Specific deterrence must loom large in this case. I accept that a respondent is not to be punished a second time for prior conduct.[277] And, as the CFMEU submitted, the concept of deterrence cannot be permitted to hijack the process. I accept also that the objective seriousness of the contempt remains the necessary central focus.[278] However, as indicated above, I regard these contempts as exceptionally serious. So much so that they warrant explicit classification as criminal contempts, perhaps for the first time in the Australian industrial context. I have already explained why I consider these contempts to be so serious. In short, they were highly contumacious. They were also highly visible and highly memorable. The Court must visit the defiance of the CFMEU with a penalty which will not only adequately respond to the scale of the defiance but also act as a general and specific deterrent. No fines of the level previously imposed could do that.
[277]Woodside Burrup Pty Ltd v CFMEU [2011] FCA 949, [48].
[278]Allen v The Queen [2013] VSCA 44, [54] (Priest JA, with whom Maxwell P and Weinberg JA agreed).
I cannot put it better than did Merkel J in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union:[279]
The rule of law in a democratic society does not permit any member of that society, no matter how powerful, to pick and choose the laws or court orders that are to be observed and those that are not. Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes (Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia[280]), it also requires that parties comply with the orders made by the courts in determining those disputes.
If the individual respondents believed that the orders of Whitlam J were wrongly made, then it was open to them to appeal, or apply for leave to appeal, against those orders. Instead, they breached them. The fact that the breaches are by union leaders holding important offices in a federation of national trade unions makes them more, rather than less, serious: see Gallagher v Durack.[281]
[279][2000] FCA 629, [79]-[80].
[280](1998) 153 ALR 641 at [1] per Hayne J.
[281](1983) 152 CLR 238, 244.
I can see absolutely no reason why my findings that the relevant contempts represent criminal contempts should not be translated into formal criminal convictions. I will order accordingly.
So far as costs are concerned, the CFMEU accepts that it must pay the costs of the Grocon plaintiffs of the first and second contempt applications, as from the filing and service of the amended statement of charge on 30 August 2012.
The Grocon plaintiffs submit that the costs should be awarded on an indemnity basis, such that every dollar they have spent will be required to be reimbursed by the CFMEU. For that purpose, the Grocon plaintiffs seek to be “liberated” from the Supreme Court scale, which would otherwise apply even to the assessment of indemnity costs.
The CFMEU submits that costs should be taxed on the ordinary basis, namely, up until 1 April 2013, on the party-party basis and thereafter on the standard basis.
I note that as at 21 June 2013, Grocon estimated that its costs were approximately $1.3 million.
In considering the question of costs, I have taken into account the entire history of the three contempt applications.
Like Dixon J in Deputy Commissioner of Taxation v Gashi (No 3),[282] I consider that the CFMEU should pay the costs of the Grocon plaintiffs on an indemnity basis. I respectfully adopt his Honour’s reasoning in support of the view that indemnity costs should generally be ordered in favour of a successful applicant in contempt proceedings.[283] I note that any fine would be payable not to the Grocon plaintiffs but to consolidated revenue.[284]
[282][2011] VSC 448.
[283]See also Bovis [2009] FCA 650 [45].
[284]Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2013] FCA 1380, [37]-[38] (Gilmour J).
The Grocon plaintiffs were successful in establishing all 30 charges of contempt that were litigated in the first and second contempt applications. It is true that, once the CFMEU came to be represented in the matter, its legal representatives acted sensibly and helpfully. That, however, is no reason to deny the Grocon plaintiffs indemnity costs. On the other hand, this case bears no resemblance to the only case of which I am aware in which this Court has “liberated” a party from scale, namely Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3).[285]
[285][2012] VSC 399 (Croft J). See especially at [89]-[91].
As mentioned above, the Attorney-General did not strongly push for costs. In any event, I would not require the CFMEU to pay the costs of the Attorney-General. It would be unduly oppressive to require it to pay the costs of two prosecutors in this case.
Even without liberation from scale, the amount that will be due from the CFMEU to the Grocon plaintiffs for indemnity costs in the first and second contempt applications will obviously be very large. It seems that it may be in the order of $1 million or more. Further, as I will shortly indicate, the CFMEU will be called upon to pay costs to the Grocon plaintiffs in the third contempt application. Again, the amounts will be very significant. It will have to meet its own costs, which must also be substantial. In addition, there will be fines to be paid in the third contempt application, as I will indicate. Applying the principle of totality, I take all of those matters into account in assessing the appropriate amount of the fines which I propose to impose in the first and second contempt applications.[286] Those fines will be:
(a)For the contempt on 28 August 2012, $250,000;
(b)For the contempt on 29 August 2012, $250,000;
(c)For the contempt on 30 August 2012, $250,000;
(d)For the contempt on 31 August 2012, $250,000;
(e)For the contempt on 5 September 2012, $150,000.
[286]See also Bovis [2009] FCA 650 [38]-[40].
The total of these fines is $1.15 million.
Application of the penalty principles to the Cambar/Hollow Core contempts
The circumstances of the Cambar/Hollow Core contempts are set out fully above. I will not repeat them. Nor will I repeat the matters dealt with above concerning the CFMEU’s prior history, size and financial means.
The CFMEU has not exhibited any contrition nor made any apology for the Cambar/Hollow Core contempts.
However, the CFMEU is entitled to some mitigation of penalty for its “plea”. There was some debate as to whether the plea could be called an early one. I cannot accept that description because the plea only occurred on the very day fixed for the commencement of the final hearing of the liability phase of the third contempt. On the other hand, I accept that the plea was made straight after access to the running notes of Acting Senior Sergeant Waters was first made available to the CFMEU. Still, in my view, that does not count for too much. The handing over of the notes of Acting Senior Sergeant Waters revealed further evidence that was available against the CFMEU. It related particularly to what the policewoman had said to the CFMEU officials at around 10:40 am on 26 April 2013. By definition, those officials themselves were at all times aware of what had been said to them by the policewoman.
Nevertheless, the “resolution” of the liability phase of the third contempt application resulted in some savings of time and cost to the Court and to witnesses and it facilitated the course of justice. There will be a discount on penalty accordingly.
As indicated above, the objective seriousness of the Cambar/Hollow Core contempts was not of the same order as that of the Emporium and McNab contempts, for the reasons I have already given. Nevertheless, it was a deliberate contempt. It was serious. It added to the CFMEU’s sorry history of disobedience to court orders. It must be duly punished.
As to the question of costs on this application, once again I think that the usual principle should apply, as indicated by Dixon J in Gashi. It is true that by the resolution arrived at, the CFMEU achieved a diminution in the seriousness of the charges it was facing. However, the CFMEU has nevertheless been found to have committed a serious contempt of court, as ultimately alleged by the Grocon plaintiffs. Their bringing of the proceedings has enured to the public interest. The penalty is not payable to them. I consider that an order for indemnity costs in favour of the Grocon plaintiffs is appropriate. I note that its actual costs as at 25 September 2013 are said to be approximately $400,000, excluding GST.
Once again, I do not consider it would be appropriate to require the CFMEU to pay any part of the costs of the Attorney-General, because such an order would be unduly oppressive. It is true that the CFMEU failed in their resistance to the Attorney-General’s application for joinder. However, the Attorney-General’s application was novel when made and it was not unreasonable for the CFMEU to continue to resist it.
It was common ground that it would be appropriate to impose only a single penalty in relation to the Cambar/Hollow Core contempts. They were very closely related to each other. I accept the parties’ joint position in that regard.
Having regard to the principle of totality, and taking into account the penalty and costs for the first and second contempt applications and the requirement for the CFMEU to pay the costs of the Grocon plaintiffs in this third contempt application, as well as its own costs, I consider that the appropriate single penalty for the Cambar/Hollow Core contempts is a fine of $100,000. This will bring the total amount of the fines to be paid in respect of the three contempts to $1.25 million. Indemnity costs will be additional.
Conclusion and orders
For the reasons set out above, and subject to any submissions as to form, I propose to make orders as follows:
(1)The Attorney-General for the State of Victoria is joined as a third applicant to the application by summons brought by the first and third plaintiffs filed on 29 April 2013 (as amended from time to time).
(2)The first defendant (the CFMEU) is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Chief Justice Warren on 22 August 2012, the CFMEU did on 28 August 2012 prevent, hinder and interfere with free access to the building construction site located at 269-321 Lonsdale Street, Melbourne referred to in the order (“the Emporium site”) and did on that day incite persons to prevent access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(3)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 29 August 2012 prevent, hinder and interfere with free access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(4)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 30 August 2012 prevent, hinder and interfere with free access to the Emporium site by persons, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(5)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 31 August 2012 hinder and interfere with free access to the Emporium site by persons and did cause and procure persons to prevent free access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.
(6)The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Chief Justice Warren on 21 August 2012, the CFMEU did on 5 September 2012 prevent, hinder and interfere with, on two occasions, free access by a vehicle to the site located at McNab Avenue, Footscray referred to in the order, and the CFMEU is convicted and fined $150,000 for that criminal contempt.
(7)The CFMEU is adjudged in civil contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 4 March 2013, the CFMEU did on 29 April 2013 hinder the supply of goods by Cambar Precast (Vic) Pty Ltd to the third plaintiff at the Emporium site and did hinder the supply of goods by Hollow Core Concrete Pty Ltd to the first plaintiff at the building site at 150 Collins Street, Melbourne, and the CFMEU is fined a total $100,000 for those two civil contempts.
(8)The CFMEU shall pay the costs of the first, second and third plaintiffs of their amended summons filed 30 August 2012 on an indemnity basis.
(9)The CFMEU shall pay the costs of the first and third plaintiffs of their summons filed 29 April 2013 (as amended from time to time) on an indemnity basis.
(10)The Attorney-General for the State of Victoria shall bear his own costs of these proceedings.
(11)There be a stay on the payment of the fines for 30 days from the date of this order.
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