mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: A &amp; L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Outcome: cited
other judicial statements have been made concerning the significance of a prior contravention in a different state or territory: see A &amp; L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [13] and Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 at [18] - [19] per Jessup J. Nothing to which I have been referred dissuades me from the view that, whilst prior contraventions in any state and territories may be relevant to fixing the penalty to be imposed on the Union, it will be for the Court in each case to consider the question of weight, having regard to all the relevant circumstances.
Case: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383
Outcome: cited
contraventions on 15, 17 and 21 February 2006 had the same purpose, namely, to coerce Hardcorp to re-employ Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and, amongst other things, to have Ms Singleton appointed as OH&amp;S officer on the Mount Street site. This was the common thread running through the offending conduct of 15, 17 and 21 February 2006. To this extent, the comparison with Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 is justified. Further, the fact of this common thread should be taken into account in fixing penalties, but, in my view, the contravening conduct is not, for this reason, properly seen as one course of conduct. This is because the conduct comprising each of the contraventions was separate and distinct in time and place, and in the coercion that the Union exerted. The conduct on 15 February 2006 involved demands and threats to cause trouble at the Mount Street site if the demands were not met. The conduct on 17 February 2006 involved similar demands and threats but on a different day and place, and in a different context with different participants in the occasion of the contravention. The conduct on 21 February 2006 involved Mr Mates coming on to the site and shutting down the crane. Therefore, these are three separate and distinct contraventions: compare Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at 396-399 [41] - [55] ; [2008] FCAFC 70 at [41] - [55] per Stone and Buchanan JJ. As noted above, where (as here) penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. As Tracey J said in Stuart-Mohoney 177 IR at 73 [60]: Another factor to be considered is the totality principle. This principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing see: Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 at [30] referred to with approval by Buchanan J in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 at [89] . The orthodox position requires the determination of appropriate penalties for each contravention arising from the same course of conduct. The aggregate figure is then considered to ensure that the penalty is an appropriate response to the conduct in question see: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 ; 145 ALR 36 at 53 and Ponzio at [145] per Jessup J. Penalties must also be proportionate to the culpability and seriousness of the respondent's contravening conduct and sufficient to mark the seriousness of that conduct. Neither respondent has expressed any contrition.
Case: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59
Outcome: referred to
totality principle must, however, apply: see Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63. Where penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. Penalties must be proportionate to the culpability and seriousness of the respondent's contravening conduct and sufficient to mark the seriousness of that conduct. Penalties must also be sufficiently high to deter repetition by the contravener and others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties. In argument, the parties referred to some considerations beyond those mentioned at paragraph [9] above. I discuss each of these additional matters seriatim before turning to the major issue of deterrence. The first such matter was the size and financial position of the Union.
Case: Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517
Outcome: cited
course, to say the Union is a large national organisation is not to deny that the Union is a non-profit-making enterprise, a consideration that has sometimes been taken into account in the Union's favour: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517 at [8] per Gray J; Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 at [44] per Marshall J; and Duffy v Construction, Forestry, Mining &amp; Energy Union (No 2) [2009] FCA 299
Case: Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243
Outcome: cited
course, to say the Union is a large national organisation is not to deny that the Union is a non-profit-making enterprise, a consideration that has sometimes been taken into account in the Union's favour: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517 at [8] per Gray J; Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 at [44] per Marshall J; and Duffy v Construction, Forestry, Mining &amp; Energy Union (No 2) [2009] FCA 299
Case: Duffy v Construction, Forestry, Mining &amp; Energy Union (No 2) [2009] FCA 299
Outcome: cited
Jessup J's decision in Williams [2009] FCA 223 , Mr Mates had not been found to have contravened s 43 of the Building and Construction Industry Improvement Act or any other industrial legislation. The applicant referred to Duffy v Construction, Forestry, Mining and Energy Union (2008) 178 IR 47, in which, on 28 November 2008, Marshall J found that, in October 2005, the Union had contravened s 38 of the Building and Construction Industry Improvement Act . Although the report of the case indicates that Mr Mates was involved in the events resulting in the contravention finding against the Union, there was no finding of contravention against Mr Mates. Further, for present purposes, I accept that s 38 involves consideration of facts of a different kind to that involved in a s 43 contravention. Of course, to say the Union is a large national organisation is not to deny that the Union is a non-profit-making enterprise, a consideration that has sometimes been taken into account in the Union's favour: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517 at [8] per Gray J; Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 at [44] per Marshall J; and Duffy v Construction, Forestry, Mining &amp; Energy Union (No 2) [2009] FCA 299
Case: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336
Outcome: cited
applicant noted that there was no evidence of any regret, contrition or remorse on the part of the Union or Mr Mates for their contravening conduct, and there was no apology. The respondents replied (and I accept) that this was not an aggravating circumstance that justified an increase in the level of the penalty: compare BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10] per Kiefel J. The applicant further noted that there was no evidence of any corrective action taken by the Union or Mr Mates in relation to the contraventions. Again this is not an aggravating circumstance that would justify a higher penalty. The applicant submitted that the respondents had chosen not to cooperate with him or the Office of the Australian Building and Construction Commissioner. The applicant further contended that the respondents' lack of cooperation, and failure to make admissions of liability whilst making only limited admissions of facts, necessitated the preparation of a great deal of evidence and led to a lengthy trial. This placed a burden on the limited resources of the Court and the applicant. The applicant further submitted that the respondents' conduct during the proceeding deserved censure. The applicant commented adversely on the respondents' failure to call witnesses after filing and serving witness statements, and the abandonment of their defence (that there was a crane malfunction) on the first day of trial. The applicant claimed "[a] vast amount of work needed to be undertaken ... to respond to [this] Defence".
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236
Outcome: referred to
factors may be relevant to costs (discussed below) but they do not amount to aggravating circumstances justifying a higher penalty than otherwise. This is consistent with the conclusion reached by the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at 285 [166] . The applicant submitted that the respondents' conduct was serious in that, if left unchecked, it would undermine the statutory purposes of the Building and Construction Industry Improvement Act as set out in s 3 of the Act. In effect, this consideration has previously been considered in connection with the nature and extent of the unlawful conduct. I turn now to the important question of deterrence.
Case: Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434
Outcome: cited
the respondents submitted, the proceedings themselves might reasonably be thought to have some deterrent effect in respect of the Union and Mr Mates. It has sometimes been appropriate to recognise this factor in discussing deterrence in an industrial context: see, for example, Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 per Kenny J, Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20] , [29]-[30] per North J; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J. This consideration may be borne in mind here, although I would not accord it great weight.
Case: Pine v Casello Constructions Pty Ltd [2005] FCA 1854
Outcome: cited
the respondents submitted, the proceedings themselves might reasonably be thought to have some deterrent effect in respect of the Union and Mr Mates. It has sometimes been appropriate to recognise this factor in discussing deterrence in an industrial context: see, for example, Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 per Kenny J, Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20] , [29]-[30] per North J; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J. This consideration may be borne in mind here, although I would not accord it great weight.
Case: Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964
Outcome: cited
the respondents submitted, the proceedings themselves might reasonably be thought to have some deterrent effect in respect of the Union and Mr Mates. It has sometimes been appropriate to recognise this factor in discussing deterrence in an industrial context: see, for example, Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 per Kenny J, Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20] , [29]-[30] per North J; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J. This consideration may be borne in mind here, although I would not accord it great weight. As noted above, where (as here) penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. As Tracey J said in Stuart-Mohoney 177 IR at 73 [60]: Another factor to be considered is the totality principle. This principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing see: Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 at [30] referred to with approval by Buchanan J in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 at [89] . The orthodox position requires the determination of appropriate penalties for each contravention arising from the same course of conduct. The aggregate figure is then considered to ensure that the penalty is an appropriate response to the conduct in question see: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 ; 145 ALR 36 at 53 and Ponzio at [145] per Jessup J. Penalties must also be proportionate to the culpability and seriousness of the respondent's contravening conduct and sufficient to mark the seriousness of that conduct. Neither respondent has expressed any contrition.
Case: Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705
Outcome: cited
the respondents submitted, the proceedings themselves might reasonably be thought to have some deterrent effect in respect of the Union and Mr Mates. It has sometimes been appropriate to recognise this factor in discussing deterrence in an industrial context: see, for example, Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 per Kenny J, Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20] , [29]-[30] per North J; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J. This consideration may be borne in mind here, although I would not accord it great weight.
Case: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11
Outcome: cited
3(1) of the Building and Construction Industry Improvement Act specifically states that the main object of the Act is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole". The imposition of penalties for contraventions of provisions such as s 43 is one way in which this is achieved. As already noted, the contraventions under consideration were clear. Bearing these factors in mind, the need for general deterrence is plain enough, with the result that penalties should be imposed at what has been termed a "meaningful level" to serve as a general deterrence to others who may be disposed to engage in the conduct in question: see Stuart-Mahoney 177 IR 61 at 72 [58], citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] ; Finance Sector Union v Commonwealth Bank of Australia 224 ALR at 479 [41]; and Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815 at [13] .
Case: Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847 ; (2005) 224 ALR 467
Outcome: cited
was in this case no evidence that any senior official or members of the governing bodies of the Union were involved in the contravening conduct. Accordingly, the present case is distinguishable from the situation in Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847 ; (2005) 224 ALR 467 , where Merkel J found (at 475 [27]) that CBA acted through senior executives in its contravening conduct. The case is also distinguishable from Stuart-Mahoney 177 IR 61, where (at 71 [51]) Tracey J noted that the contraventions in that case took place with the knowledge and consent of senior Union officials. This is not an aggravating circumstance in this case. Section 3(1) of the Building and Construction Industry Improvement Act specifically states that the main object of the Act is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole". The imposition of penalties for contraventions of provisions such as s 43 is one way in which this is achieved. As already noted, the contraventions under consideration were clear. Bearing these factors in mind, the need for general deterrence is plain enough, with the result that penalties should be imposed at what has been termed a "meaningful level" to serve as a general deterrence to others who may be disposed to engage in the conduct in question: see Stuart-Mahoney 177 IR 61 at 72 [58], citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] ; Finance Sector Union v Commonwealth Bank of Australia 224 ALR at 479 [41]; and Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815 at [13] .
Case: Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815
Outcome: cited
3(1) of the Building and Construction Industry Improvement Act specifically states that the main object of the Act is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole". The imposition of penalties for contraventions of provisions such as s 43 is one way in which this is achieved. As already noted, the contraventions under consideration were clear. Bearing these factors in mind, the need for general deterrence is plain enough, with the result that penalties should be imposed at what has been termed a "meaningful level" to serve as a general deterrence to others who may be disposed to engage in the conduct in question: see Stuart-Mahoney 177 IR 61 at 72 [58], citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] ; Finance Sector Union v Commonwealth Bank of Australia 224 ALR at 479 [41]; and Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815 at [13] .
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: referred to
usual practice is that costs follow the event, with the result that the Court will order the recovery of costs by a successful party on a party and party basis. The matter of costs is, however, in the general discretion of the Court, although the discretion must be exercised judicially, that is, in a principled way by reference to the litigation: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [9]-[10]. In some circumstances, the usual rule will be found wanting and success on a portion only of a claim may make it reasonable for the litigant to bear the expense of the portion in which the litigant failed. Sometimes too, an otherwise successful litigant may be ordered to pay the costs of the other party in respect of the issues on which that litigant failed. As Black CJ and French J said in Ruddock v Vadarlis (No 2) 115 FCR 229 at 236 [15], "[u]sually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings". Their Honour continued (236-237 [15] and [18]): Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues ... And a trial judge may award only a proportion of the successful party's costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings ... ... That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation.
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: cited
in mind matters of the kind referred to by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 15, courts ordinarily exercise some care before making an apportionment of costs of the kind the respondents seek. Thus, the Full Court in Australian Trade Commission v Disktravel [2000] FCA 62 at [4] declined to make such an order, upon the basis that: The appellant succeeded completely in terms of the final orders it secured. The issues it raised in argument on the appeal were not unreasonably raised. The somewhat complex factual background was a matter which had to be considered in relation to all issues. None of the issues raised can be characterised in terms of the time and work involved as distinct and severable from the other issues to the extent that an apportionment would be warranted. The applicant and the respondents all relied on this passage, pointing to different factors in their favour. In the present case, the key factor is that the applicant has not acted unreasonably in raising any issues in the context of the facts as they understood them.
Case: Australian Trade Commission v Disktravel [2000] FCA 62
Outcome: referred to
in mind matters of the kind referred to by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 15, courts ordinarily exercise some care before making an apportionment of costs of the kind the respondents seek. Thus, the Full Court in Australian Trade Commission v Disktravel [2000] FCA 62 at [4] declined to make such an order, upon the basis that: The appellant succeeded completely in terms of the final orders it secured. The issues it raised in argument on the appeal were not unreasonably raised. The somewhat complex factual background was a matter which had to be considered in relation to all issues. None of the issues raised can be characterised in terms of the time and work involved as distinct and severable from the other issues to the extent that an apportionment would be warranted. The applicant and the respondents all relied on this passage, pointing to different factors in their favour. In the present case, the key factor is that the applicant has not acted unreasonably in raising any issues in the context of the facts as they understood them.