Here is a link to the Supreme Court Judgement.  In summary, the CFMEU has been found in criminal contempt of the Court and fined a total of $1.25m on my arithmetic.

Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134 (31 March 2014)

Last Updated: 31 March 2014

AT MELBOURNE

COMMON LAW DIVISION

SCI 2012 4743

BETWEEN

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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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HIS HONOUR:

Introduction

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

2 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.

3 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.

4 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]

5 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.

6 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.

7 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.

8 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.

You can read the full judgement here - for now the court's orders are published below:

(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.

This graph from last year’s Budget shows NDIS and Gonski were fully funded. pic.twitter.com/bTgY5Vs4lP

— Wayne Swan (@SwannyQLD) March 30, 2014

By Jason Morrison

There's nothing new about the tactic but there's something very stupid about the logic. 

QANTAS is coming back off a $252 million loss and really only two groups of people can give it any hope – the management and the staff.

The TWU was boasting yesterday about its plans for civil disobedience which would include blocking roads into the airport to teach the airline a lesson.

Here's Channel 9's coverage and sorry the audio levels are very low.

Yep … that’ll bring the travelling public back! 

Dear Paul,

Thank you for speaking so plainly on The Drum on Friday and for today's column in the Fairfax press.

I was surprised to read your thoughts about Julia Gillard's place in history following the union royal commission.   If she was an unwitting ingenue I'd agree with your observation that "simply by being associated with this judicial inquiry, Ms Gillard will suffer collateral damage to the gravitas of her legacy as the first woman prime minister of Australia".

But a simple association with the Royal Commission won't damage Ms Gillard.   Her legacy will be destroyed because of incorporated association(s) she made to order for corrupt union mates.  That is, her role in the furtherance of various crimes.

On 9 December 2013 Victoria's Chief Magistrate Peter Lauritsen handed down this 12 page Ruling.
arising from a search warrant issued to Victoria Police on 15 May 2013 (while Ms Gillard was Prime Minister, in fact on the very day she cried in the Parliament).   The search warrant named Julia Gillard and authorised police to enter Slater and Gordon and seize her personnel files, the record of interview on her separation from Slater and Gordon and a raft of documents pertaining to her "legal work" for her boyfriend Bruce Wilson, the former AWU chief.

Chief Magistrate Lauritsen's Ruling was made against Gillard's former romantic partner Bruce Wilson.   While it was a damaging finding for Wilson, it was devastating for the two lawyers who worked at Slater and Gordon's industrial unit with Wilson as their "client".   The Chief Magistrate found that in every instance, each document prepared and each communication between Wilson and Julia Gillard/ Bernard Murphy was made "for the furtherance of the commission of a fraud or an offence".  

The Chief Magistrate's ruling has been appealed to the Supreme Court - but in total his ruling applies to 366 documents, a huge amount of "furtherance" of Wilson/Gillard crimes.  The Chief Magistrate's written ruling includes sworn evidence from Victoria Police who are considering charging Wilson, Blewitt and others with offences including conspiracy to cheat and defraud as well as other fraud and forgery (creating and using false document) charges.

McHugh J in his paper “Jeopardy of lawyers and accountants in acting on commercial transactions” delivered to the Perth Summer School 1988, published in Australian Bar Review, vol 5 No 1 March 1989 page 1 refers to conspiracy to defraud and aiding and abetting a breach of the law as the two areas of the criminal law which potentially apply to professional advice.

His Honour dealt with the concept of encouragement by practitioners of clients’ unlawful activities in this way:

“In the present context of the relationship between a commercial solicitor or accountant and his client, I think ...that it is unreal to suggest that the professional adviser is not “in any real sense encouraging the client to act or proceed in a particular manner”. ...The lawyer, and in an appropriate case the accountant, has a vested interest in the matter proceeding ...much professional advice in commercial situations extends beyond the field of their legal advice. ... An inference of encouragement would usually be open even when the client simply asks whether a particular course of commercial conduct is lawful. It would be open to a jury to conclude that the client was relying on the lawyer’s advice and was encouraged to carry out the prohibited conduct by reason of it” and further “when the lawyer goes beyond advice and draws documents for the purpose of enabling a client to achieve an objective, it is, I think, almost impossible to contend that the adviser does not aid the commission of any offence which results.””

I agree with McHugh's characterisation as it applies to my study of Ms Gillard's role.   It is almost impossible to contend that Ms Gillard did not aid the commission of Wilson's offences.

I've written a little about Ms Gillard's role in writing the 9 pages of Objects of the Association that she says was set up to raise money for Bruce's electoral ambitions.   The former chief of Western Australia's anti-corruption commission Terry O'Connor QC examined her role (on the papers) and in the absence of anything exculpatory in Ms Gillard's public statements or the record of interview at Slater and Gordon, Mr O'Connor QC advised Ms Gillard faced, "a prima facie case that she could have been charged along with Blewitt as she drafted the rules of the association for Blewitt knowing that the rules did not disclose the purpose for which the association was being incorporated".

My website is very fortunate in that quite eminent people render opinions from time to time.  One such correspondent is Stephen J whose judicial renderings always make for fascinating and compelling reading.   Stephen J wrote about Ms Gillard's role and the way a case might be presented in the offences of aiding and abetting a principal offender here and here.

In January last year Victoria Police attended for some days on the former Slater and Gordon paralegal officer Olive Brosnahan - after that it was clear a major investigation was under way.   Soon after Victoria Police detectives executed a search warrant on the Federal Court seeking its files in the matter.  

By February 2013 multiple witnesses were reported to be speaking to police, including former Victorian AWU state secretary and Labor Parliamentarian Bob Smith speaking in this February 2013 article in the News Limited press:

Mr Smith said he told police that "Kon Spyridis approached me, came to my office, and requested payment for work he had done on Ms Gillard's home at Abbotsford.

"I explained to him that it was nothing to do with us (the AWU) and that he would be better served by speaking to Gillard or Bruce Wilson," he said.

That same month former AWU national secretary and current Fair Work Commissioner and judicial officer in the NSW Industrial Relations Commission Ian Cambridge announced publicly that he would hand over all the material he had on The AWU Scandal to police and he encouraged others, particularly the current President of the AWU Bill Ludwig to do the same.

I have spent dozens of days in the company of police investigating the Wilson AWU matter.   I have a good grasp of what went on and what various eye witnesses have told me.   So I'm a bit different from you, particularly when you say, "I have never questioned her claim that she was duped by unionists who used her legal services to engage in fraud. I do not question that claim now".

I have questioned Ms Gillard's claims - here.   Someone was kind enough to send me the audio of the radio show I did at 2UE when I asked those questions of the PM, you can hear it here.   I was employed by your employer Fairfax at the time.   Fairfax didn't like what I had done, it said I had asked unauthorised questions of the Prime Minister.   Unauthorised.   When the media censors itself and doesn't ask questions of a PM I think we are in trouble.  That's why I am not with Fairfax any longer.

After Ralph Blewitt told me that Gillard did not witness him signing a Power of Attorney used in the purchase of the Kerr Street property, I wrote again to Ms Gillard to get her version of events.   When she didn't respond to me, I reported Julia Eileen GILLARD (DOB 29 September 1961) of The Lodge, Canberra to Victoria Police on 17 October, 2012.  I also reported Trust Account irregularities regarding the Kerr Street property transaction to the Legal Services Board of Victoria which advised me that it is now conducting its enquiries into the matter on the back of the Victoria Police criminal investigation - link here.

I'd love to know why you're happy not to question Ms Gillard's claim that she was duped by unionists.   I say there is compelling evidence to support the assertion that Ms Gillard was not duped at all, rather that she was a knowing accomplice who had her home renovations paid for by corruptly received monies.

Yours sincerely,

Michael Smith

What do these people not get?

If there's anything Australians hate to see it's do-nothing politicians abusing the trappings of public office at our expense. 

The Daily Telegraph reports today NSW Education Minister Adrian Piccoli has been sprung taking a  trip to Vietnam to witness the signing of a document ....that had been already signed.

In other words, your classic political junket.

Cost to the public - $20,000. Benefit to the public - nil. 

Piccoli is your classic fake conservative - a lefty in a Liberal/National Government who takes the path of least resistance just about always. 

He has some significant judgements issues. You might recall he was the first education minister in the country to run to Gillard to sign up for Gonski while everyone else knew it was an unfunded load of bull.

Today's report says Piccoli apparently tried to work in a bit of shopping on the way back by getting his department to look for opportunities to allow him to visit other places. 

Oldest trick in the book, that one.

Fair dinkum .. when will they learn?

To keep reading download the paper here

Today marks 100 days since the last successful people smuggling venture to Australia.
 
The security of our nation is the most important responsibility of government.  This government takes its responsibilities seriously.
 
The Coalition went to the last election with clear policies to stop the boats. We are keeping our promise to stop the boats by doing what we said we would do.  These strong policies are saving lives.
 
Under Labor, more than 800 boats arrived carrying over 50,000 people, including more than 8,000 children.  This catastrophic policy failure resulted in over 1,000 lives lost at sea and $11 billion in Budget blowouts.
 
The Government has made the difficult but necessary decisions to stop the boats.
 
Operation Sovereign Borders is working as intended.  The people smugglers understand that the way to Australia is closed.
 
The progress we are making in strengthening our borders is restoring confidence in our migration programme.  We are an immigrant country and a successful immigration programme requires that it operates with integrity. 
 
While this milestone recognises the progress that we have made, the Government remains resolute in our determination to stop the boats.

Regards,



Tony Abbott
Prime Minister

The Hon. Tony Abbott MP
Prime Minister

The Hon. Scott Morrison MP 
Minister for Immigration and Border Protection

Today marks 100 days since the last successful people smuggling venture to Australia.

The last successful people smuggling venture to Australia occurred on 19 December last year. During the same 100 day period a year ago (20 December 2012 – 29 March 2013), 66 illegal boats carrying 3,879 people arrived.

This is the longest period without a successful venture since before the Howard Government’s strong border protection policies were abandoned by Labor and Kevin Rudd in August 2008.

The Coalition went to the last election with clear policies to stop the boats. We are delivering on our pledge to stop the boats.

The Government has made difficult but necessary decisions to secure our borders and restore what Labor had destroyed. These strong policies are saving lives.

Operation Sovereign Borders is working as intended. We acknowledge the work and dedication of the people and agencies across government in making this happen. They are doing a great service for our nation.

The people smugglers now understand that the way to Australia is closed. We are putting the smugglers out of business.

Under Labor over 800 boats arrived carrying more than 50,000 people, including more than 8,000 children. This catastrophic policy failure resulted in over 1,000 lives lost at sea and $11 billion in Budget blowouts.

The progress we are making in strengthening our borders is restoring confidence in our migration programme. We are an immigrant country and a successful immigration programme requires that it operate with integrity.

While this milestone recognises the progress that we have made, the Government remains resolute in our determination to stop the boats.