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December 2015

Hizb ut-Tahrir Sheik Ismail al WahWah preaches murder of Jews, cleared of breaking law. Aussie makes stupid Facebook comment about Mosques, charged inciting religious hatred

EXHIBIT ONE - KILL THE JEWS - no offence apparently against Australian laws, go your hardest Ismail 

 

 

EXHIBIT TWO - Cancel all police leave, this is serious!  An Australian made an off-hand comment about Mosques on someone's Facebook page.

Screen Shot 2015-12-24 at 7.01.01 am

An Australian woman has been charged with religious vilification after her Facebook post last month calling for "all mosques to be burnt down with the doors locked at prayer time" went viral.
However, the woman claims she cannot be charged with religious vilification because she does not acknowledge Islam as a religion. She believes it is a "evil, hateful ideology".
She made the post calling for the mosques to be burnt down on November 27.
The woman may be the first person charged with religious vilification in Victoria for a social media post.

The woman posted her charge sheet and a long statement on Facebook, saying she would "not back down". Many of her supporters claim the charge is an example of police denying the woman her freedom to speak freely about Islam.
Others claim it is an example of the "appeasement" of Islam.
Police confirmed a 38-year-old woman was charged by Swan Hill police on December 15. Under section 25 of the Racial and Religious Tolerance Act 2001 it is an offence to threaten or incite others to threaten a person on the basis of their religious beliefs.
The offence carries a maximum jail term of six months along with a maximum fine of $9100.
"It was not long after the Lindt Siege [December 16 and 15, 2014] and I commented on a Stop the Mosque in Bendigo page," the woman said on her Facebook page.
"It was when Sweden were burning mosques down and I made a comment of: all mosques should be burnt down with the doors locked at prayer time! Probably not the best thing to write but that's my opinion, others commented after my post agreeing with it and unbeknown to myself it got a lot of likes, that is where their incitement charge is coming from.
"Yesterday I got a call at work by the detective and he told me I was being charged. I told him how can I be charged for an opinion and how can I be charged with a religious vilification when I don't acknowledge those that are Muslims and those that follow the Quaran (sic) as a religion but as an evil, hateful ideology.
"I am more than happy for it to go public, if I do nothing about it and let them win it goes against everything I stand for and I can't do that! I didn't want this or the publicity that will come with it but it is what it is and I'm not about to back down."


Read more: http://www.brisbanetimes.com.au/victoria/woman-charged-after-facebook-call-to-burn-down-mosques-goes-viral-20151222-gltqz9.html#ixzz3vC10dwEt
Follow us: @brisbanetimes on Twitter | brisbanetimes on Facebook


Vultures circling over the diminishing Slater and Gordon carcass - UPDATED WITH REGISTRATION DETAILS FOR CLASS ACTION & SLATERS ASX RELEASE

UPDATE

This is the Maurice Blackburn website - or to quote Slater and Gordon, the 'media speculation' - set up to record details from potential participants in the class action against Slater and Gordon.

Screen Shot 2015-12-23 at 10.21.44 am

Screen Shot 2015-12-23 at 10.24.36 am Screen Shot 2015-12-23 at 10.24.49 am

SLATER & GORDON SHAREHOLDER CLASS ACTION

Maurice Blackburn is accepting registrations for a potential shareholder class action against Slater and Gordon (SGH) in relation to its disclosures to the market and the devastating share price drop suffered by its shareholders. Our investigations into SGH’s conduct are continuing, but now is the time to register your interest in a class action with us.

 
Register now

If you purchased SGH shares in the period from Wednesday 1 April 2015 to Wednesday 16 December 2015 (inclusive) then we encourage you to register your details with us in order to get the best legal representation possible should a shareholder class action ensue.

Over the past several months, Maurice Blackburn has carefully monitored the events surrounding the precipitous decline in the price of shares in SGH, the ASX-listed international law firm. 

SGH shares have lost almost 90 per cent of their value since April 2015 as a series of questions have been raised about its acquisition in the United Kingdom of the Professional Services Division of Quindell PLC for approximately A$1.3 billion, the impact of proposed legislative changes affecting the personal injury legal market in the United Kingdom, and most recently the withdrawal of revenue and earnings guidance that had been emphatically re-affirmed only weeks previously. These issues raise significant concerns about the timing and accuracy of information released by SGH to the market.

In light of these concerns, Maurice Blackburn is accepting shareholder registrations via a simple website form with a view to instituting a shareholder class action should we determine after further investigation that SGH has a case to answer in relation to its disclosures to the market and the devastating share price drop suffered by its shareholders.

There is no cost to register using the simple forms on this website, and by registering you are not committing to anything, nor are you going to be liable for any costs should an action proceed simply by registering below. However, it will be important for us to be able to contact and advise you of your position as we continue to investigate whether SGH has a case to answer.

*Institutional investors will be contacted separately or can request further information via our Corporate Relationships Manager Cameron Scott, by emailing cscott@mauriceblackburn.com.au

  • See more at: https://www.mauriceblackburn.com.au/current-class-actions/slater-and-gordon-shareholder-class-action#sthash.TJ9nQDdI.dpuf

ENDS

At about 1.15PM Slater and Gordon made this announcement to the ASX about "media speculation" - does Slater and Gordon's senior staff really expect people to believe that no one in the firm has any idea about the potential legal action headed the firm's way?   I'd suggest that Slater and Gordon should have a little more than just "media speculation" to talk to the exchange about.

Screen Shot 2015-12-23 at 9.34.43 am

Nothing yet on the ASX so far as continuous disclosure from Slater and Gordon is concerned, the latest announcement is this response to an unrelated ASX query posted 21 December 2015.

Here's The Australian today

Slater and Gordon: rival Maurice Blackburn to pursue class action

  • THE AUSTRALIAN

Andrew Grech, managing partner of law firm Slater and Gordon.

 

Two of Australia’s largest class action law firms could face off against each other after Maurice Blackburn said it would pursue legal action against Slater & Gordon.

Shares in the beleaguered law firm have declined by almost 90 per cent since April this year, after the corporate regulator queried several aspects of the company’s accounts.

Despite warning signs it would not meet its earnings guidance, Slater & Gordon management only abandoned its forecasts last week.

Maurice Blackburn’s Jacob Varghese said it was now sounding out investor interest for a class-action lawsuit in the “likely event” it proceeds.

“Shareholders in Slater & Gordon have a right to be profoundly disappointed in last week’s announcement and subsequent further price drop, after having already suffered the company having lost most of its value since April this year,” he said.

“To be walking away from the earnings guidance it reaffirmed only a few weeks ago makes it increasingly hard to believe that the company has proper systems in place or that the guidance should have been given in the first place.

“We now know Slater & Gordon has made admissions to the Australian Securities Exchange that the company had prior knowledge of last week’s announcement, and it appears highly likely that among the throng of management issues it has grappled with this year are further breaches.”

The Australian reported on Monday that executives had, in response to queries from the ASX, received information the law firm admits would have “a material effect” on its share price a week before announcing the withdrawal of its earnings forecasts.

But the company said that information was “internal management information” and required verification, which took one week, before investors could be notified.

It was then that Slater & Gordon walked away from its earnings guidance of $205 million for the financial year, a forecast it had stood by repeatedly even as it admitted it was “now a likelihood” the law firm would have negative cash flow of up to $40m for the first half of the year.

 


Seeker of Truth with some observations that suggest the Gillard/Wilson liaison started much earlier than we'd thought.

You'll recall our post about Ms Gillard's claim to have met Bruce Wilson in April 1991 after "running' a 3 day full bench industrial relations commission hearing involving the Textiles, Clothing and Footwear union.   She also said that she provided Wilson with legal advice about his "stalking" of the AWU WA Branch State Secretary of the time. 


http://www.michaelsmithnews.com/2015/12/what-brought-bruce-and-julia-together-she-says-it-was-all-about-the-shoes-and-clothes.html

Seeker of Truth makes some good points that cast doubt on the May 1991 Gillard story and suggest the Gillard/Wilson liaison may have been running for some time by then.

The extract of the Minutes in the above blog link makes reference to
"formalise its earlier decision and appoint Mr B.M. Wilson to the position
of Branch Secretary of the Western Australian Branch of the Australian
Workers' Union .... " That earlier date is possibly the 19 Feb 1991 date
mentioned. Wilson and supporters were planning for the over throw of
President and Secretary to be formalised at its 30 July 1991 meeting as
these Minutes indicate but things fell into place to make it occur sooner
ie. 2 May 1991 with Joe Isherwood agreeing to resign. ………

This exhibit is the 2 May 1991 Minutes of the Branch Committee Meeting -

https://www.tradeunionroyalcommission.gov.au/Hearings/Documents/Evidence10June/CambridgeMFI1-Tab1-Pages1-13.pdf

Many of us have assumed, relying on Wilson, Gillard’s and even Blewitt’s
evidence that Julia Gillard first met Wilson in 1991. We believed that it
was in 1991 that she gave him advice on how to secure the Secretaryship of
the AWU WA branch.
However, on a further read of those 2 May 1991 Minutes, it seems that as
of February 1991 Wilson was assured of being appointed secretary of the
union. It only had to be formalised at a later meeting.

Therefore by February 1991 Gillard had given Wilson all the legal advice
necessary for him to have the officials of the branch executive agree to
his appointment as WA Branch Secretary. Joe Isherwood was the sticking
point and trouble maker and had to resign to make this happen. It was not
Keenan as Keenan had already agreed to resign. Wilson has basically
confirmed this in his Statement by detailing his negotiations with Keenan
in early 1991 to secure his resignation and also by the fact that no
letter of resignation was presented at the meeting of 2 May 1991. It had
been handed in earlier and that would have been the meeting of 19
February. It was Isherwood's resignation as President that was handed in
at the 2 May meeting.

Julia Gillard in her exit interview makes no mention of Joe Isherwood. It
is about Keenan.

“….Bruce had been an organiser of the Western Australian branch. He had a
falling out with the then secretary. (SoT That would be Keenan). The
secretary had dismissed him. He had been appointed as a national
organiser ‘cause he enjoyed national support. He had run elections as a
national secretary contender. He hadn’t been successful in that but he
had run it close. He was basically stalking the WA secretary with a view
to getting him and taking his position, and he needed some advice about
arrangements to do with that……”

Come February 1991 Wilson had secured Keenan’s resignation.

Therefore any advice Gillard gave Wilson would have been prior to February
1991.

Our research shows that there was no full bench appeal in 1991 involving
the Clothing and Allied Trades Industrial Union (be it the National Office
or the WA branch). Graeme Droppert did act for the clothing union but he
does not appear in many cases before the Commission. I have found him
appearing in only two. However, S&G were the solicitors representing the
National Office of the Union and that would put Gillard in touch with
Droppert who did represent the Union. From my research, he was
representing the National Office of the Union on 9 May 1989 when a matter
was heard before Commissioner Riordan then at the appeal in October 1989
with the decision being handed down on 7 December 1989. It was a full
bench respondency appeal hearing.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AIRC/1989/922.html?stem=0&synonyms=0&query=Droppert

I refer you to this March 1996 article from the BRW on Portrait of a Man,
Portrait of a Union about Bruce Wilson which you published some time ago.
It helps with the timeline and also has direct quotes from Wilson, Keenan
and Isherwood.

http://michaelsmithnews.typepad.com/files/portrait-of-a-man-portrait-of-a-union.pdf

Then we have Bruce Wilson’s statement to TURC to assist.

https://www.tradeunionroyalcommission.gov.au/Hearings/Documents/Evidence12June2014/statement-of-bruce-wilson-dated-4june2014.pdf

According to Wilson, in early 1989 after the National Executive Meeting at
which he was a WA delegate (as a WA Vice President elected 1985), on a
flight back to Perth with Keenan who was also a WA delegate in his
capacity as Secretary of the WA branch, Keenan sacked him from his
position as organiser of the WA branch. He was sacked for not following
voting instructions. Keenan made Wilson’s position as a WA branch
organiser redundant. Wilson was now without official standing in the WA
branch but was still a WA delegate at National Executive meetings.

After he was sacked Wilson had talks with Ludwig about getting an
appointment as a National Organiser in WA. The position of National
Organiser did not exist. It was to be a new position.

Now Wilson says that he drafted a resolution to put to the Executive.
That was put to an executive meeting on 28 June 1990 and his appointment
was to take effect on 2 July 1990. There was a challenge to the validity
of the resolution on the basis that it was not in accordance with the
Rules.

At this point in time, Wilson has lost his job as a WA organiser. He does
not have the backing of his WA union nor the services of their legal
advisers. He is involved in a Court action before Justice Einfeld over
the validity of the resolution as a Respondent.

http://michaelsmithnews.typepad.com/files/bruce-wilson-appointment-in-wa-justice-einfeld---payoff-allegation.pdf

Who gave him legal advice on the resolution for the position of National
Organiser being within the Rules? Wilson said he drafted it.

Wilson had to get this position as National Organiser who was to be based
in the Perth office of AWU WA branch to launch his campaign to unseat
Keenan and with him Isherwood to become WA Secretary.

Gillard told her Partners –
“…He had a falling out with the then secretary. The secretary had
dismissed him. He had been appointed as a national organiser ‘cause he
enjoyed national support. He had run in the elections as national
secretary contender. He hadn’t been successful in that but he had run it
close. He was AT THAT POINT basically stalking the then WA secretary with
a view to getting him out and taking his position, and he needed some
advice about arrangements to do that. And Graham Droppit asked me if I
could give him some advice when I was over there about those things. So I
ran the full bench appeal like a Wednesday, Thursday, Friday, something
like that, and I stayed on in Perth on the Saturday for the purpose of
meeting with Wilson.”

On 22 March 1991 Justice Einfeld ruled in favour of the resolution. I’d
imagine that Wilson had not been able to act as National Organiser until
his appointment was validated by the Court.

Wilson can now set up shop in WA and in the AWU WA office. He had already
secured the resignation of Keenan in February 1991 and his branch
executive had agreed to his appointment as Secretary but it has to be
formalised. That decision of Einfeld in March was the writing on the wall
for Isherwood. He knew he had to resign from the union but he wanted it
to be on his terms with a payout. Wilson obliged.

Could it be that it was December 1989 that Gillard met Wilson in Perth
while she was in that city for The Clothing & Allied hearing of matter 659
of 1989 – a full bench respondency matter decision. Did she then give him
advice about his proposed resolution to create the position of national
organiser for WA and helped him draft it so that it would fall within the
Rules. The resolution was very comprehensive with 9 points to it and
whoever drafted was confident that it came with the Rules of the Union and
be able to withstand a legal challenge which it did. Did Gillard give
Wilson advice on arrangements that would eventually result in him securing
the WA Secretary? I’d expect with a resolution like that, it would not
have been finalised over the weekend. She would have had to go back to
Melbourne and do more research of the Rules and continue to be in contact
with Wilson. It took a few months until it was finally ready to be
presented at the National Executive meeting in June 1990. The resolution
is very specific when it comes to dates so whoever drafted it must have
known it was to be presented at the June 1990 National Executive meeting
seeking appointment to take effect on 2 July 1990.

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION


Industrial Relations Act 1988
s.45 appeal against decision(1)

The Clothing and Allied Trades Union of Australia


and

Accessories Plus and others
(C No. 65090 of 1989)

Clothing
employees Clothing industry

JUSTICE MADDERN, PRESIDENT
DEPUTY PRESIDENT KEOGH
COMMISSIONER
LAING Perth, 7 December 1989

Continue reading "Seeker of Truth with some observations that suggest the Gillard/Wilson liaison started much earlier than we'd thought." »


The ABC's media release on Mark Scott's appointment - editorial, editorial, editorial

The ABC is a broadcaster, a publisher.   That's its primary role - thus the key performance indicator for its leader should be related to how well he or she delivers against the ABC's editorial charter.

Right now the ABC's 'professionals' who are too good to be told what to do and how to do it run themselves.   Mark Scott gave up on enforcing his standards for the place years ago - but that's not what the Board of the ABC had in mind when they appointed him.

Here's an extract from the ABC's media release announcing Mark Scott's appointment on 22 May 2006.

Mr McDonald said the ABC Board had resolved unanimously to appoint Mr Scott following a national and international search that produced an outstanding field of candidates.

“Mr Scott is an exceptional media professional with a distinguished academic record and comes to the ABC from John Fairfax Publications, where he is Editorial Director,” Mr McDonald said.

“The ABC is one of Australia’s largest and most diverse media organisations and in Mr Scott we have found someone with the media experience and drive necessary to take the ABC confidently into the digital media future.

“The Board was particularly impressed with his combination of editorial experience, management skills developed in one of Australia’s oldest and most distinguished media companies and his proven ability to respond to the challenges of a changing media environment.

“At Fairfax, Mr Scott has served in a range of senior roles over the past 10 years, including Editor-in-Chief of Metropolitan, Regional Community Newspapers, which included The Sydney Morning Herald, Sun Herald, The Age and Sunday Age.

“His current role includes responsibility for editorial direction and management of Fairfax newspapers, the publication of its general magazines, along with Fairfax’s expansion of its newsrooms into digital media through its successful websites smh.com.au and theage.com.au.

Editorial, editorial, editorial.   And Scott told us he wold hook in to the bias and story selection that irks most of us about what the ABC puts to air.   Scott just gave up trying.

It's a sign of how far off course the ABC is currently tracking that editorial expertise for its new Editor in Chief was considered by the Board to be a nice to have optional extra.   You can bet your bottom dollar that the loud lefties will be thrilled - Ms Guthrie will be in a terribly difficult position to defend when the conversations edge towards, "Well of course everyone here respects your management credentials but I don't think there's much argument about who has the more solid journalistic judgement."   Even if the Board wanted her to discharge her responsibilities as Editor in Chief, it's set her up to fail by making experience and qualifications in journalism and editorship optional extras and then in choosing someone who simply doesn't have the news background. 

The ABC's culture wore down Mark Scott in no time flat:

http://www.michaelsmithnews.com/2013/10/to-mark-scott-editor-in-chief-abc-the-australians-editor-took-responsibility-for-his-paper-today-you.html

Ms Guthrie has arrived with no journalistic expertise for the ABC staff collective to hit with the angle grinder, she'll be as smooth as silk for them from day one.   So much for this government exercising some influence to bring the ABC back towards mainstream Australian community standards in the mores and norms that guide its publishing.


The phantom solicitors who appear to have acted for Blewitt/Wilson in the conveyance of Kerr Street to its new 1996 owner


On 2 December 1996 Detective Sergeant Dave McAlpine of the WA Police Fraud Squad made this entry in his running sheet for the AWU WRA Inc investigation:

Screen Shot 2015-12-22 at 11.09.39 pm

Last two lines - "Mortgage with Bank of Melbourne & Thigles, Solicitors did conveyancing......"

We have searched unsuccessfully for any trace of "Thigles Solicitors" who apparently handled the conveyance for Blewitt/Wilson (given the context of the running sheet in a police investigation of Blewitt and Wilson, I presume Thigles was thought to have acted for Blewitt rather than the new purchaser).

Reader and master researcher A wrote today with what appears to be the final word on Thigles:

The Australian Legal Directory was published annually by the Australian Document Exchange Pty Ltd for the Law Council of Australia. The directory contained an alphabetical list of Australian legal practitioners and an alphabetical list of legal firms. There is no entry for Thigles in the 1996 edition of the directory. Please see attachment for an extract from each list.

Screen Shot 2015-12-22 at 11.50.42 pm Screen Shot 2015-12-22 at 11.50.56 pm

This is obviously a matter that must be run to ground to finalise the AWU WRA Inc investigation, particularly given what we discovered about the destination of the final proceeds cheque to Blewitt's "solicitor' here:.   

http://www.michaelsmithnews.com/2015/11/the-cheque-from-the-sale-of-kerr-street-was-sent-to-ralph-blewitts-solicitor-police-wanted-a-stateme.html

One final point we've missed in the past.  McAlpine records his intention to phone back the XXXXX of XXXXX the next day 3 December.

Screen Shot 2015-12-22 at 11.58.42 pm

And on 5 December 1996 this fascinating and potentially very important note about the fate of the cheques:

Screen Shot 2015-12-22 at 11.58.54 pm

Those documents should tell a fascinating story.   There's so much original source material apparently collected in the WA Fraud Squad original investigation that you have to wonder why so little of it was tendered to the TURC......

UPDATE

Thank you to the many readers who have written to point out that a Thigle is a "thing" in Buddhism/Yoga/Wise-Men-of-the-Orient stuff.   Here's an extract from "Tibetan Buddhist Medicine and Psychiatry: The Diamond Healing"  by Terry Clifford  who's apparently an authority - The Thigles of Buddha is one topic I'd hate to get for the Million Dollar Question.

Screen Shot 2015-12-23 at 3.55.20 am Screen Shot 2015-12-23 at 3.55.42 am

Know anyone with a reason to use a bodgied up name and a love for Buddhist diamond healing?


How can Bill Shorten continue to stick up for the outlaw CFMEU - read today's Federal Court Judgement

Judgement was today handed down in the Federal Court against the CFMEU - again - this time for threatening to put a scaffolding company out of business if it did not hire a particular bloke favoured by the CFMEU.

The CFMEU was fined $245K and an individual official copped a hit too - the full judgement is here:

http://www.austlii.edu.au/au/cases/cth/FCA/2015/1462.html

Justice Tracey said:

The case is devoid of any mitigating circumstances. The Union has shown no contrition, and has not cooperated with the regulator. I accept the submission made on behalf of the respondents that neither of these circumstances should be regarded as an aggravating one. On the other hand, on the facts of the case, and on the way it has been conducted, there is no circumstance to which counsel could point as tending to exert a moderating influence upon the level of the penalty which the court would otherwise impose.

He also said:

It has been repeatedly said that an important – probably the main – function of a regime of civil penalties is to secure observance of the law by placing a price upon conduct which contravenes the law. That is to say, the objective is deterrence, both specific and general. Regrettably, in the circumstances of the Union, specific deterrence has become a major consideration in an exercise of the kind with which I am presently concerned. In written submissions filed on his behalf, the applicant summarised a number of the things that have recently been said by judges of this court on the subject of the Union’s preparedness to ignore the statutory prohibitions to which it is subject. Counsel for the respondents did not engage with the point being made in these submissions: indeed, he recognised that the Union’s record of contravention was a serious one. This was a concession fairly and appropriately made, albeit that, as will appear, I consider that reference to the Union’s record as “serious” understates the situation to a significant degree.


The passage in the applicant’s written submissions to which I have referred was as follows:


The CFMEU’s repeated contravening conduct has been the subject of sustained judicial criticism over a long period of time. For example:


(a) On 9 May 2002, Justice Cooper made the following observation:


If an industrial organisation turns a blind eye, or does not concern itself as to the manner and methods employed by officers, servants or agents of the industrial organisation to achieve what they see as the organisation’s ends, the organisation is at risk of being heavily penalised where the means adopted are prohibited and exhibit the worst features of the proscribed conduct.
In the present case, the first and second respondents have chosen to give no evidence as to what those in authority knew of the conduct of the third and fourth respondents at and prior to the matters complained of. Nor is there any evidence as to what, if any, action was taken by the organisation to counsel, or moderate the behaviour of, the officers for the future. [Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 [20]-[21]]


(b) On 11 April 2008, Justice Gyles made the following observation:


A number of findings involving unlawful behaviour by officials related to the CFMEU have been made in recent years ... [His Honour then cited 12 cases] ... ... These various cases illustrate that the federal body has not been effective in ensuring that officials act in accordance with the law. I note that there is no evidence of offending officials... suffering any serious disciplinary penalties.
In my opinion, notwithstanding the purely vicarious nature of the liability of the CFMEU, the penalty in this case, when compared with the maximum penalty, should adequately reflect the systematic nature of the failure of the CFMEU to deter or prevent actions of the kind involved in this case and act as a spur towards effective action by the CFMEU and the State entities connected with it. [A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 [13]-[14]]


(c) On 29 May 2009, Justice Jessup said:


... the history tends to suggest that the Union has, with respect to anticoercion and similar provisions of industrial laws, what the High Court in Veen described as ‘a continuing attitude of disobedience of the law’... [Williams v Construction, Forestry, Mining and Energy Union and Mates (No 2) [2009] FCA 548; (2009) 182 IR 327 [29]]


(d) On 10 September 2009 Justices Goldberg, Jacobson and Tracey of the Full Court of the Federal Court referred to:


the litany of contraventions ... [and] the many prior contraventions of relevant statutory proscriptions by the Union ... indicating a propensity, on the part of the Union, to engage in proscribed conduct. [Draffin v CFMEU & Ors (2009) 189 IR 145 [70], [79] and [92]]


(e) On 21 November 2013, Justice Tracey said:


There is also a need for any penalty to have a specific deterrent effect on the CFMEU. It has, as I have already outlined, a deplorable record of contraventions of the BCII Act and similar legislation. The union has not displayed any contrition or remorse for its conduct. The contravention is serious... Substantial penalties for misconduct, prior to that presently under consideration, have not caused the CFMEU to desist from similar unlawful conduct. As a result this consideration must weigh heavily when determining an appropriate penalty. [Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243 [43]]


(f) On 23 December 2014, Justice White observed:


The Director provided a schedule of the occasions on which the CFMEU has been dealt with by Courts for contraventions of industrial legislation. It is fair to describe the CFMEU record as dismal. Since 1999, the CFMEU has had penalties imposed on it by a Court on numerous occasions. ...The record indicates an attitude of indifference by the CFMEU to compliance with the requirements of the legislation ... It also indicates that deterrence must be a prominent consideration in the fixing of penalties in the present cases. [Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432; (2014) 146 ALD 75 [76]-[77]]


(g) On 20 April 2015, Justice Tracey observed:


The present conduct of one of its officials adds to this depressing litany of misbehaviour. It evidences an ongoing disregard for the rule of law and highlights the need for the imposition of meaningful penalties within the limits imposed by the Act. [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353 [96]-[97]]


(h) On 1 May 2015, Justice Tracey observed:


Underlying the various contraventions some consistent themes are apparent. In seeking to achieve its desired outcomes the CFMEU had available to it lawful processes which it could have pursued. It chose, instead, to prosecute its objectives by means which it must have known or, at least, should have known, were unlawful. Not for the first time the CFMEU sought to impose its will by means of threats and coercion against employers. Its approach was one of entitlement: it was free, despite legal constraint, to deploy its considerable resources in order to achieve its industrial objectives. The concept of the rule of law was anathema to it. [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407 [103]]


(i) On 12 June 2015, Justice Logan observed in reference to the CFMEU:


An industrial organisation, be it an employer organisation or an employee organisation, which persistently abuses the privilege by engaging in unlawful conduct cannot expect to remain registered. [Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 [9]
His Honour later described the CFMEU as having an “outrageous disregard” for “Australian industrial norms”. [[2015] FCA 614 [49]]
Second reference in (i) at end of second para– [[2015] FCA 614 [49]]


(j) On 3 July 2015, Justice Gilmour observed:


The CFMEU’s long history of its officials conducting themselves unlawfully ... calls for a significant component of specific deterrence. [Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 [61]]


(k) On 14 August 2015, Justice Mansfield observed:


There is clearly, as other judges have recorded, a strong record of noncompliance on the part of the Union through its officers with provisions of industrial relations legislation, although that does not mean that a disproportionate penalty can or should be imposed. I note that significant past penalties have not caused the Union to alter its apparent attitude to compliance with the entry provisions and restrictions under the FW Act.
There is clearly an ongoing need for an order to be made for a pecuniary penalty which has a deterrent effect upon the Union and signals to others who may consider engaging in such conduct or like conduct that it is inappropriate to do so. [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 3) [2015] FCA 845 [24]-[25]]


(l) On 10 September 2015, Justice Flick observed:


But for the past history of contraventions on the part of the CFMEU, a penalty would have been imposed of $175, 000; when that past history is taken into account it is considered that the penalty should be $225, 000. Approached in this manner, the reasoning at least has the advantage of transparency. The penalty of $225,000 is proportionate to the contraventions that have been found to have occurred. Rather than the penalty of $225,000 being seen as an increase in the penalty “because of prior convictions”, it is more correctly characterised as a penalty that may better serve the objective of deterrence. [Director of the Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998 [21]]


(m) On 4 November 2015, Justice Jessup observed:


As has become customary in cases such as this, the applicant has placed before the court a schedule of the Union’s previous contraventions of civil penalty provisions in the FW Act, and of corresponding provisions in the Building and Construction Industry Improvement Act 2005 (Cth). The pattern of contravention which emerges from material such as this has been the subject of comment by the court on a number of occasions. The schedule paints, one would have to say, a depressing picture. But it is more than that. I am bound to say that the conduct referred to in the schedule bespeaks an organisational culture in which contraventions of the law have become normalised. [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173


To the observations set out above should now be added the following, from the judgment of Tracey J in Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [62]-[63]:


The circumstances of these cases were not identical to those in the present case. They, nonetheless, bespeak a deplorable attitude, on the part of the CFMEU, to its legal obligations and the statutory processes which govern relations between unions and employers in this country. This ongoing willingness to engage in contravening conduct must weigh heavily when the need for both specific and general deterrence is brought to account.


Neither the CFMEU nor any individual respondent is to be punished again for earlier misconduct. They are, however, to be punished more severely than they would have been had they had no adverse record or been responsible for only a few isolated incidents over a period of many years. Their continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, had not had a deterrent effect: cf Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-8. The longer such recidivism continues the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending.


Federal Court orders Kathy Jackson pay the HSU a further $1M in interest and legal costs

The last of the HSU/Jackson matters was dealt with today - Justice Tracey handing down an aggregate order against Kathy Jackson for a further $1M odd in costs and interest.

Kathy Jackson did not contest the HSU's application, nor did her bankruptcy trustee appear.

The HSU was pretty much wholly successful  - who knows now where the bankruptcy trustee will position this claim on her estate - a claim which on current form you'd imagine will be pressed by the HSU.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca1467

THE COURT ORDERS THAT:

 

  • The third cross-respondent pay the respondent/cross-claimant $86,633.81 by way of judgment interest.
  • The respondent pay the applicant $554,215.67 by way of judgment interest.
  • Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth) the respondent pay the applicant’s costs by way of a lump sum order fixed at $356,500.

REASONS FOR JUDGMENT

1    On 19 August 2015 I made orders requiring Ms Jackson to pay various sums to the Health Services Union (“the Union”) by way of compensation for damage suffered by it which was caused by various contraventions by her of legislative requirements and as money had and received by her for the use of the Union: see Health Services Union v Jackson (No 4) [2015] FCA 865. I further ordered that, if the Union sought any further amounts by way of costs and interest, it should file written submissions. It did so on 2 September 2015. It filed supplementary submissions on 4 November 2015.

2    The Union has sought the following orders:

    Pre-judgment interest of $554,215.67 in the Victorian proceeding and $86,633.81 in the New South Wales proceeding.

    Costs of $506,800 in the Victorian proceeding and $53,200 in the New South Wales proceeding.

3    The Union has asked the Court, when making any orders for interest and costs, to distinguish between amounts awarded in respect of the periods before and after 26 June 2015. It was on this day that Ms Jackson lodged a debtor’s petition under the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). The Court was informed that issues may arise, in the administration of her estate or in other proceedings, which would require such a distinction to be made. Lest such issues arise, I will distinguish, in my reasons, between the relevant periods before and after Ms Jackson’s bankruptcy.

4    The Union’s written submissions were served on Ms Jackson. She has not filed any answering submissions. Her trustee in bankruptcy has advised the Court that, unless it is proposing to make any orders against him, he does not wish to be heard on the issues of interest and costs.