Case: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: applied
Applicant submitted that the CFMEU should be fined between $200,000.00 and $250,000.00 in relation to each of the two incidents of contempt and sought its costs on an indemnity basis. The Applicant urged the Court to impose an effective penalty, lest serious and lasting damage to the fabric of the law result: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 115 (" Mudginberri Station "). The CFMEU accepted that it should pay the Applicant's costs of the penalty hearing, on a party-party basis, and submitted that a penalty in the sum of $10,000 was appropriate. It was submitted that, as the application for contempt was only partly successful, each party should bear its own costs of the two motions for contempt. PARTICIPATION OF THE ABCC Section 31(1) of the Federal Court of Australia Act 1976 (Cth) identifies the power possessed by this Court to punish contempts: "Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court." The power possessed by the High Court to punish contempts is specified in s 24 of the Judiciary Act 1903 (Cth): "The High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England." When the Judiciary Act 1903 (Cth) commenced, the Supreme Court of Judicature in England had power to punish for contempt, whether civil or criminal: see Mudginberri Station at 105-106. The penalties the Court may impose depend on who is identified as the respondent to the proceeding: see High Court Rules 2004 (Cth) r 11.04.1. In this case, the only respondent was the CFMEU. None of the individual officers or members involved in the contempts was named as a respondent. Where, as here, the contemnor is a body corporate, r 11.04.1 (b) of the High Court Rules 2004 (Cth) provides that the Court may order: "... that the contemnor pay a fine, that some or all of the property of the contemnor be sequestrated or that both the contemnor pay a fine and some or all of the property of the contemnor be sequestrated." The 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: The underlying rationale of every exercise of the contempt power is that it is necessary to uphold and protect the effective administration of justice: see Mudginberri Station at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) . The power to punish contempts serves the purpose of disciplining the defendant and vindicating the authority of the court (see Mudginberri Station at 112-113); it is the means by which the law vindicates the public interest in the due administration of justice: see Attorney-General v Times Newspaper Ltd [1974] AC 273 at 315-316; Borrie &amp; Lowe, The Law of Contempt , (3 rd ed, Butterworths, 1996) p 1 and is the way in which the Court preserves respect for its role and the rule of law: see Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 per Tamberlin J. There are many facets to the administration of justice (Borrie &amp; Lowe, p 1). While the effect of the contempt on the ability to prosecute the principal proceeding may be relevant in assessing the effect of the contempt on the administration of justice: see, for example, Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd (No 2) [2008] FCA 1965 , the subject matter of the principal proceeding does not define the scope or the effect of the contempt on the administration of justice. In Attorney-General v Times Newspaper Ltd [1974] AC 273 at 309 Lord Diplock considered the requirements of the due administration of justice: "The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court." The 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 Applicant also submitted that the defiance of the Order was public in nature: see Mudginberri Station at 108. The Applicant tendered the transcript and a sound recording of a radio interview of Bill Oliver, Victorian Branch Secretary of the CFMEU Construction and General Division, in support of this contention. The tender was not objected to by the CFMEU, save as to relevance. The interview took place on 25 February 2009, the third day of the contempt hearing. It was broadcast on 774ABC radio. When asked by the interviewer "[w]hy are your members blocking access to the site?", Mr Oliver replied "Well, we've got a problem down there ... and we've ended up in a court situation, sort of thing, at the moment." It was clear that Mr Oliver was referring to this Court. The Order was not mentioned. Counsel for the CFMEU contested the submission that the CFMEU was in public defiance of the Court's order. He contrasted the circumstances in Mudginberri Station where the union was found to be in public defiance of the court's order because the secretary of the union had stated publicly that the union would not pay the fine imposed by the Court with Mr Oliver's remarks. A public announcement of defiance of the kind which occurred in Mudginberri Station may readily be characterised as being "public in nature". The statement was made in circumstances where it was plainly intended that it would be reported and it was, in fact, widely disseminated in the media. Although Mr Oliver was interviewed on a radio station he did not make any statement that the union was defying or was intending to defy orders made by this Court. Plainly he was aware of the proceeding and he knew, or ought to have known, of the orders made by Marshall J. He did not, however, acknowledge that the union was acting in defiance of them. I do not, therefore, consider that the statements made by Mr Oliver during the radio interview can be said to have expressed defiance of the Court's orders. There were, however, a number of acts of public defiance of the Court's orders at the Site. When presented with copies of the orders by representatives of the Applicant, a number of the CFMEU's officials either refused to accept them or allowed them to fall to the ground despite being advised of the nature of the documents. Statements were also made by some of the officials to the effect that they would act on advice from the union office rather than have regard to the terms of the orders which they were told required them to desist from obstructive action. This conduct occurred outside the Site gates and in the presence of employees of the Applicant. They constituted public acts of defiance even though they were not publicised to the wider community. Such defiance is not to be treated with the same gravity as defiance of the kind which occurred in Mudginberri Station . It is, however, a matter of relevance in fixing a penalty in the present case. Deterrence