Jason Morrison and Michael Smith on how to get stuff fully-funded - Wayne's way
Deliberately congesting roads to force you to 'change your behaviour'

Supreme Court of Victoria's written judgement dated today - finds the CFMEU in contempt $1.25M fine

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

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:

  1. 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;
  2. 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

---

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)

---

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.

 

---

APPEARANCES:
Counsel
Solicitors
For the first to third plaintiffs
Mr M McDonald SC, Mr P M O’Grady, Mr P Wheelahan
Herbert Smith Freehills
     
For the fourth plaintiff
Mr S Wood SC, Mr J Snaden, Mr B Jellis and, on 14 and 15 November 2013, Ms R Sweet
Victorian Government Solicitor’s Office
     
For the first defendant
Mr P Morrissey SC,

Ms R Shann

Slater and Gordon

 

 

 

 

HIS HONOUR:

Introduction

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

Comments