mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24
Outcome: referred to
CFMEU was determined not to obey the Order and did not make a reasonable attempt to comply with the Order: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 at 358. The conduct of the CFMEU was not casual, accidental or unintentional and was therefore wilful for the purposes of the law of contempt: see Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 57; Mudginberri Station at 113. The additional cases relied on by the CFMEU involved contraventions of civil penalty provisions. In those cases it was accepted that the trouble and cost of defending the proceeding served the purpose of personal deterrence. The Full Court in Ponzio v B &amp; P Caeli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 did not, however, consider that the need for general deterrence would be met unless a monetary penalty was also imposed: see at [97], [164]. In any event and for the reasons earlier articulated, I consider that cases concerning contraventions of civil penalty provisions to be of limited assistance where contempts of court have occurred. In the circumstances of this case deterrence both specific and general is an important consideration. The penalty must be imposed at a meaningful level so as to deter the CFMEU, and others who, save for the risk of a high penalty, may otherwise engage in contravening conduct: see generally Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 at [24] ; Trade Practices Commission v CSR Ltd [1991] HCA 7 ; [1991] ATPR 52 ,135 (41-076). The fact that a contemnor has incurred legal expenses in defending charges is to be borne in mind when a penalty is determined but this consideration does not weigh heavily in mitigation of penalty. Apology or contrition In my view, the position remains that, where a contemnor has admitted the contempt, genuine contrition and a full and ample apology may reduce the penalty: see, for example, Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union (2000) 97 IR 474 ; Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24. However, where, as here, the charges of contempt are contested, the absence of an apology by the contemnor does not carry any significant weight in the sentencing process.
Case: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union (2000) 97 IR 474
Outcome: referred to
my view, the position remains that, where a contemnor has admitted the contempt, genuine contrition and a full and ample apology may reduce the penalty: see, for example, Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union (2000) 97 IR 474 ; Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24. However, where, as here, the charges of contempt are contested, the absence of an apology by the contemnor does not carry any significant weight in the sentencing process.
Case: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining &amp; Energy Union [2001] FCA 336
Outcome: referred to
BHP Steel the CFMEU had contested the charges of contempt at trial but was found guilty: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining &amp; Energy Union [2000] FCA 1853. While the penalty hearing was pending, the CFMEU appealed. Following the penalty hearing Kiefel J held that, while the lack of an apology is not an aggravating circumstance, the making of an apology can operate to reduce a penalty: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining &amp; Energy Union [2001] FCA 336. Her Honour ordered that the CFMEU be fined $200,000. On appeal, a Full Court found that the CFMEU was guilty of contempt on a more limited basis than that found by her Honour: see Construction, Forestry, Mining &amp; Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758. The matter was remitted to Kiefel J for reconsideration of the question of penalty. The CFMEU then apologised. It submitted that it had been unable to tender an apology until after the Full Court had determined the extent of its liability: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2002] FCA 702 at [19] . Her Honour was not re-assured by the apology, but reduced the penalty to $120,000. The CFMEU again appealed. In Construction, Forestry, Mining &amp; Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 Tamberlin and Goldberg JJ (with whom Moore J generally agreed) said (at 360 [51]): "A number of other matters were raised in argument concerning the absence of any proper timely apology or of any admission of guilt. However, given the fact that the liability for contempt was contested, in our view, these considerations do not have any significant weight." Their Honours reduced the amount of the fine to $50,000. For completeness I note that their Honours delivered a further judgment in which they specified the time for payment of the fine: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 62.
Case: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651
Outcome: referred to
Court has an unfettered discretion in determining whether and on what basis to award costs: see Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651. It is common for costs to be awarded in favour of a successful Applicant in contempt proceedings: see BHP Steel at 351; Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496. Courts, however, have awarded costs on a party and party basis (see: for example, Jones v Toben (No 2 ) [2009] FCA 477) and on an indemnity basis (see: for example, BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2002] FCA 702). The reason that indemnity costs are frequently awarded where an applicant has successfully prosecuted charges of contempt is that the applicant has not been seeking any remedy on its own behalf but rather has been upholding the various public interests which are served by prosecutions for contempt of Court.
Case: Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306
Outcome: referred to
19 February 2009 and again on 23 February 2009 officials and members of the Respondent ("the CFMEU") obstructed and interfered with the passage of vehicles seeking to enter the New Royal Children's Hospital Site, in breach of an order made by Marshall J on 19 February 2009 ("the Order"). I have found that the CFMEU thereby committed contempt of Court: see Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194. It is now necessary to determine appropriate penalties for these contempts. The Applicant submitted that the conduct of the CFMEU in this proceeding, (see generally Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194 at [23] - [29] , [32]-[33]), was such that the Court could not be confident that the CFMEU would be deterred from engaging in similar conduct in the future unless a significant penalty were imposed. It was accepted by the CFMEU that there was a need for specific and general deterrence where contempts of Court have occurred. Counsel for the CFMEU submitted that the legal expenses which it had incurred in relation to the case constituted a significant deterrent, independently of any monetary penalty which might be imposed. They contended that it was proper for the Court to take into consideration the "significant burden imposed by any costs order against [a] respondent": see BHP Steel at [13] and [53]; and the fact that the defending of the proceeding had involved a cost burden on the CFMEU. The CFMEU's legal costs were said to be $78,000. In support of this contention, the CFMEU also relied on Ponzio v B &amp; P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B &amp; P Caelli Consturctions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Pine v Expoconti Pty Ltd (2005) 147 IR 426; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705.
Case: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1994) 94 IR 231
Outcome: referred to
Leighton Le Miere J was called on to determine the appropriate penalty to be imposed on the CFMEU for contraventions of s 38 of the Building and Construction Industry Improvement Act (Cth) and followed the approach taken by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 , which accepted that previous contraventions of Pt XA of the Workplace Relations Act 1996 (Cth) were a relevant consideration in determining the appropriate penalty for a subsequent contravention of Pt XA of that Act. His Honour continued: "It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the [CFMEU] anywhere in Australia. The [CFMEU] is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the [CFMEU] are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the [CFMEU] through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation..." (Emphasis added).
Case: Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705
Outcome: referred to
Applicant submitted that the conduct of the CFMEU in this proceeding, (see generally Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194 at [23] - [29] , [32]-[33]), was such that the Court could not be confident that the CFMEU would be deterred from engaging in similar conduct in the future unless a significant penalty were imposed. It was accepted by the CFMEU that there was a need for specific and general deterrence where contempts of Court have occurred. Counsel for the CFMEU submitted that the legal expenses which it had incurred in relation to the case constituted a significant deterrent, independently of any monetary penalty which might be imposed. They contended that it was proper for the Court to take into consideration the "significant burden imposed by any costs order against [a] respondent": see BHP Steel at [13] and [53]; and the fact that the defending of the proceeding had involved a cost burden on the CFMEU. The CFMEU's legal costs were said to be $78,000. In support of this contention, the CFMEU also relied on Ponzio v B &amp; P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B &amp; P Caelli Consturctions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Pine v Expoconti Pty Ltd (2005) 147 IR 426; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705.
Case: Hoare v The Queen [1989] HCA 33 ; (1989) 167 CLR 348
Outcome: referred to
Applicant relied on the conviction which was imposed on the CFMEU in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 (which varied the declaration of Kiefel J in BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2000] FCA 1853 , see further [42] below), as a relevant prior conviction. In that case the CFMEU was also required to pay indemnity costs: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining &amp; Energy Union [2002] FCA 702. The CFMEU accepted that prior convictions were relevant and may justify a heavier penalty than might otherwise be imposed. Counsel for the CFMEU told the Court that the CFMEU had not been found guilty of contempt of Court in relation to any earlier action taken in Victoria; the "only potential prior conviction" of the CFMEU was the conviction imposed in the BHP Steel case. It was submitted that "prior convictions of another autonomous division and/or autonomous branch of the respondent should not be taken into account". Reliance was placed on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 and Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169. Alternatively, the CFMEU submitted that, if the fine was considered a relevant prior conviction, in the absence of statutory provision, it could not lead to the imposition of a penalty that was disproportionate to the gravity of the instant offence: see Hoare v The Queen [1989] HCA 33 ; (1989) 167 CLR 348 ; Veen v The Queen [1979] HCA 7 ; (1979) 143 CLR 458 and Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465.
Case: Hughes v Western Australian Cricket Association (Inc) [1986] HCA 72 ; [1986] ATPR 48 ,134
Outcome: referred to
this case, the Applicant's case was only partly successful. This gives rise to the possibility of an apportionment of costs: see, for example, Hughes v Western Australian Cricket Association (Inc) [1986] HCA 72 ; [1986] ATPR 48 ,134; Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172
Outcome: referred to
this case, the Applicant's case was only partly successful. This gives rise to the possibility of an apportionment of costs: see, for example, Hughes v Western Australian Cricket Association (Inc) [1986] HCA 72 ; [1986] ATPR 48 ,134; Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Jones v Toben (No 2 ) [2009] FCA 477
Outcome: referred to
Court has an unfettered discretion in determining whether and on what basis to award costs: see Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651. It is common for costs to be awarded in favour of a successful Applicant in contempt proceedings: see BHP Steel at 351; Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496. Courts, however, have awarded costs on a party and party basis (see: for example, Jones v Toben (No 2 ) [2009] FCA 477) and on an indemnity basis (see: for example, BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2002] FCA 702). The reason that indemnity costs are frequently awarded where an applicant has successfully prosecuted charges of contempt is that the applicant has not been seeking any remedy on its own behalf but rather has been upholding the various public interests which are served by prosecutions for contempt of Court.
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375
Outcome: considered
Applicant relied on the conviction which was imposed on the CFMEU in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 (which varied the declaration of Kiefel J in BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2000] FCA 1853 , see further [42] below), as a relevant prior conviction. In that case the CFMEU was also required to pay indemnity costs: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining &amp; Energy Union [2002] FCA 702. The CFMEU accepted that prior convictions were relevant and may justify a heavier penalty than might otherwise be imposed. Counsel for the CFMEU told the Court that the CFMEU had not been found guilty of contempt of Court in relation to any earlier action taken in Victoria; the "only potential prior conviction" of the CFMEU was the conviction imposed in the BHP Steel case. It was submitted that "prior convictions of another autonomous division and/or autonomous branch of the respondent should not be taken into account". Reliance was placed on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 and Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169. Alternatively, the CFMEU submitted that, if the fine was considered a relevant prior conviction, in the absence of statutory provision, it could not lead to the imposition of a penalty that was disproportionate to the gravity of the instant offence: see Hoare v The Queen [1989] HCA 33 ; (1989) 167 CLR 348 ; Veen v The Queen [1979] HCA 7 ; (1979) 143 CLR 458 and Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465. In Leighton Le Miere J was called on to determine the appropriate penalty to be imposed on the CFMEU for contraventions of s 38 of the Building and Construction Industry Improvement Act (Cth) and followed the approach taken by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 , which accepted that previous contraventions of Pt XA of the Workplace Relations Act 1996 (Cth) were a relevant consideration in determining the appropriate penalty for a subsequent contravention of Pt XA of that Act. His Honour continued: "It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the [CFMEU] anywhere in Australia. The [CFMEU] is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the [CFMEU] are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the [CFMEU] through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation..." (Emphasis added).
Case: Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579
Outcome: referred to
in the proceeding for contempt, Mr N J D Green, of Queen's Counsel, announced that he appeared for the Australian Building and Construction Commissioner ("the ABCC") and sought leave to be heard. Again, Senior Counsel for the CFMEU objected. I indicated that I would hear Mr Green on matters on which only the ABCC was able to assist the Court: see Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 604-5. He made short oral submissions. Counsel for the ABCC sought to emphasise the matters the ABCC considered the Court should pay regard to when determining the appropriate penalty. These matters largely reflected those emphasised by the parties. As a result, I did not consider that the ABCC was able to assist the Court in dealing with the question of what, if any, penalty should be imposed.
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494
Outcome: referred to
considerations relevant to the determination of an appropriate penalty for contempt of Court were discussed by the High Court in Mudginberri Station ; see also Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 (" BHP Steel ") and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501-502. Those considerations include: In my view, the position remains that, where a contemnor has admitted the contempt, genuine contrition and a full and ample apology may reduce the penalty: see, for example, Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union (2000) 97 IR 474 ; Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24. However, where, as here, the charges of contempt are contested, the absence of an apology by the contemnor does not carry any significant weight in the sentencing process.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
Court has an unfettered discretion in determining whether and on what basis to award costs: see Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651. It is common for costs to be awarded in favour of a successful Applicant in contempt proceedings: see BHP Steel at 351; Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496. Courts, however, have awarded costs on a party and party basis (see: for example, Jones v Toben (No 2 ) [2009] FCA 477) and on an indemnity basis (see: for example, BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2002] FCA 702). The reason that indemnity costs are frequently awarded where an applicant has successfully prosecuted charges of contempt is that the applicant has not been seeking any remedy on its own behalf but rather has been upholding the various public interests which are served by prosecutions for contempt of Court.
Case: Pine v Expoconti Pty Ltd (2005) 147 IR 426
Outcome: referred to
Applicant submitted that the conduct of the CFMEU in this proceeding, (see generally Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194 at [23] - [29] , [32]-[33]), was such that the Court could not be confident that the CFMEU would be deterred from engaging in similar conduct in the future unless a significant penalty were imposed. It was accepted by the CFMEU that there was a need for specific and general deterrence where contempts of Court have occurred. Counsel for the CFMEU submitted that the legal expenses which it had incurred in relation to the case constituted a significant deterrent, independently of any monetary penalty which might be imposed. They contended that it was proper for the Court to take into consideration the "significant burden imposed by any costs order against [a] respondent": see BHP Steel at [13] and [53]; and the fact that the defending of the proceeding had involved a cost burden on the CFMEU. The CFMEU's legal costs were said to be $78,000. In support of this contention, the CFMEU also relied on Ponzio v B &amp; P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B &amp; P Caelli Consturctions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Pine v Expoconti Pty Ltd (2005) 147 IR 426; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705.