mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mill v The Queen (1988) 166 CLR 59
Outcome: cited
have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. It is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B &amp; P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency.
Case: Johnson v R (2004) 205 ALR 346
Outcome: cited
have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. It is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B &amp; P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36
Outcome: cited
have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. It is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B &amp; P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency.
Case: Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228
Outcome: cited
have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J.
Case: Standen v Feehan (2008) 175 IR 297
Outcome: cited
far as Part 15 of the Act is concerned the only penalty proceeding involving a contravention of the right of entry provisions is Standen v Feehan (2008) 175 IR 297 per Lander J (as to the contravening conduct) and (2008) 177 IR 276 (as to the penalty decision). Mr Feehan was an official of the CFMEU although the CFMEU was not a party to the proceeding. Mr Feehan in exercising powers of entry to premises under ss 285B and 285C of the Act intentionally hindered and obstructed a person in contravention of s 285E of the Act. A penalty of $1,300.00 was imposed on Mr Feehan. The maximum penalty was $2,000.00. As to questions of broader principle, Lander J considered at [16] of the penalty decision that punishment played some part in formulating a penalty for a contravention of the right of entry provisions but rehabilitation played no real part. Lander J was dealing with the imposition of a penalty on the individuals.
Case: Australian Building and Construction Commission v McLoughlin [2007] AIRC 717
Outcome: cited
is also placed on Australian Building and Construction Commission v McLoughlin [2007] AIRC 717. The case involved conduct at a number of building sites by a CFMEU organiser in breach of entry provisions of the Act. The CFMEU was not a party to those proceedings. Reliance is also placed on Radisich v Buchan, Heath, Molina and the Construction, Forestry, Mining and Energy Union [2008] AIRC 324. In that proceeding before the Commission, an Australian Building and Construction Inspector sought orders for the suspension or revocation of entry permits issued under Part 15 of the Act to Buchan, Heath and Molina, officials of the CFMEU, on the footing that each official was said to have abused the right of entry in a number of ways including, at [7], [8] and [9], entering particular sites, failing to avoid unnecessary obstruction, refusing directions to leave, misleading the occupier as to a right of entry and intentionally asserting a right of entry. The actions of the officials were also actions of the CFMEU [10]. The conduct was also said to include attending sites with Mr McDonald, the Assistant State Secretary for the Construction and General Division Western Australia Divisional Branch of the CFMEU, at which Mr McDonald who did not hold an entry permit under Part 15 purported to exercise rights of entry. The CFMEU consented to orders ( PR 984581 , AIRC, Perth, 18 November 2008) involving the suspension of the permits of Buchan and Molina (Heath no longer being a Union official) and Orders 4, 5 and 6(a) in these terms: 4. The following condition is imposed on all current permits and all permits to be issued in the next 2 years in respect of the Construction and General Division, Western Australia Divisional Branch of the CFMEU: "The permit holder is not permitted to enter or remain on premises being construction sites in the company of, or in concert with, Joseph McDonald except where McDonald has been invited in advance on to those premises by an owner and has complied with the requirements of the direction in order 5." 5. A duly authorised officer of the CFMEU give written direction to Mr McDonald that Mr McDonald must not purport to rely on any right of entry under the Workplace Relations Act 1996 in order to facilitate access to construction sites when he in fact holds no right of entry permit under the Act. (a) The CFMEU not apply to the Registrar under s.740 of the Act for the issue of a permit to Mr McDonald for a period of 2 years from the date of this order. ... Mr McDonald of course was a senior official of the CFMEU.
Case: Alfred v Quirk [2008] AIRC 781
Outcome: cited
Alfred v Quirk [2008] AIRC 781 a CFMEU organiser, Mr Quirk, was found at [44] to have abused a right of entry to a worksite at Castle Hill to hold discussions with employees by refusing to produce at the lunch huts his entry permit for the inspection of the employer's site manager, Mr Sukkar, in breach of s 765 of the Act. The CFMEU was not a party to the proceeding. Reliance is also placed on Hadgkiss v Sunland Constructions Pty Ltd (2007) 161 IR 317 (in which the CFMEU was a party) (the substantive proceeding) and Hadgkiss v CFMEU (2007) IR 385 (the penalty proceeding) as an example of conduct on the part of the CFMEU and CFMEU (Qld) through an organiser, Mr Oskam, which is said to bear the same essential characteristics of misrepresentation central to the contraventions in issue in these proceedings. In the Hadgkiss case, Mr Oskam made false and misleading statements to employees of a company concerning their obligation to join the Union, in contravention of s 298SC of the Act which was taken, by operation of the Act, to be conduct of the Unions. The applicant and the intervener in these proceedings say that this case is analogically relevant as the contravening conduct affecting John Holland involved misrepresentations by the officials to the employees of the right of the officials to enter the X50 worksite and hold discussions with those employees.
Case: Hadgkiss v CFMEU (2007) 161 IR 317
Outcome: cited
Alfred v Quirk [2008] AIRC 781 a CFMEU organiser, Mr Quirk, was found at [44] to have abused a right of entry to a worksite at Castle Hill to hold discussions with employees by refusing to produce at the lunch huts his entry permit for the inspection of the employer's site manager, Mr Sukkar, in breach of s 765 of the Act. The CFMEU was not a party to the proceeding. Reliance is also placed on Hadgkiss v Sunland Constructions Pty Ltd (2007) 161 IR 317 (in which the CFMEU was a party) (the substantive proceeding) and Hadgkiss v CFMEU (2007) IR 385 (the penalty proceeding) as an example of conduct on the part of the CFMEU and CFMEU (Qld) through an organiser, Mr Oskam, which is said to bear the same essential characteristics of misrepresentation central to the contraventions in issue in these proceedings. In the Hadgkiss case, Mr Oskam made false and misleading statements to employees of a company concerning their obligation to join the Union, in contravention of s 298SC of the Act which was taken, by operation of the Act, to be conduct of the Unions. The applicant and the intervener in these proceedings say that this case is analogically relevant as the contravening conduct affecting John Holland involved misrepresentations by the officials to the employees of the right of the officials to enter the X50 worksite and hold discussions with those employees.
Case: Hadgkiss v CFMEU (2007) IR 385
Outcome: cited
Alfred v Quirk [2008] AIRC 781 a CFMEU organiser, Mr Quirk, was found at [44] to have abused a right of entry to a worksite at Castle Hill to hold discussions with employees by refusing to produce at the lunch huts his entry permit for the inspection of the employer's site manager, Mr Sukkar, in breach of s 765 of the Act. The CFMEU was not a party to the proceeding. Reliance is also placed on Hadgkiss v Sunland Constructions Pty Ltd (2007) 161 IR 317 (in which the CFMEU was a party) (the substantive proceeding) and Hadgkiss v CFMEU (2007) IR 385 (the penalty proceeding) as an example of conduct on the part of the CFMEU and CFMEU (Qld) through an organiser, Mr Oskam, which is said to bear the same essential characteristics of misrepresentation central to the contraventions in issue in these proceedings. In the Hadgkiss case, Mr Oskam made false and misleading statements to employees of a company concerning their obligation to join the Union, in contravention of s 298SC of the Act which was taken, by operation of the Act, to be conduct of the Unions. The applicant and the intervener in these proceedings say that this case is analogically relevant as the contravening conduct affecting John Holland involved misrepresentations by the officials to the employees of the right of the officials to enter the X50 worksite and hold discussions with those employees.
Case: Hadgkiss v CFMEU (No 3) (2007) 160 IR 263
Outcome: cited
similar effect are Hadgkiss v CFMEU (No 3) (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach).
Case: Hadgkiss v CFMEU (No 4) (2007) 161 IR 338
Outcome: cited
similar effect are Hadgkiss v CFMEU (No 3) (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach).
Case: Hadgkiss v CFMEU (No 5) (2008) 178 IR 123
Outcome: cited
similar effect are Hadgkiss v CFMEU (No 3) (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach).
Case: CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237
Outcome: cited
similar effect are Hadgkiss v CFMEU (No 3) (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach).
Case: Inspector Cruse v CFMEU (2008) 175 IR 447
Outcome: cited
similar effect are Hadgkiss v CFMEU (No 3) (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach).
Case: Cruse v CFMEU (No. 2) [2008] FCA 1637
Outcome: cited
similar effect are Hadgkiss v CFMEU (No 3) (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach).
Case: Temple v Powell (2008) 173 IR 189
Outcome: cited
seems to me that when Branson J formulated in CFMEU v Coal &amp; Allied Operations Pty Ltd (No. 2) (supra at [17] of these reasons) a non-exhaustive list of considerations to be taken into account in the exercise of the discretion in respect of a contravention of what was Part XA of the Act, her Honour was not intending to convey the impression that by making reference to whether previous contraventions of Part XA of the Act had occurred, her Honour was suggesting that previous contraventions of other provisions of the Act or other contraventions relevant to the exercise of the discretion ought to be excluded from consideration. I respectfully agree with the observations on these matters of Jessup J in Williams v CFMEU (No. 2) and Dowsett J in Temple v Powell (2008) 173 IR 189 at [64]. I respectfully disagree with the approach adopted in Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375 at 389 390 [67] per Le Miere J. I disagree in the sense that the exercise of the discretion ought not to be fettered by an exclusionary rule. Each case will turn on its own facts. Further, I do not accept that contraventions by a federally registered Union ought to be disregarded if the previous contraventions have occurred in a different geographical place from that within the area of responsibility of that part of the Union engaged in the contraventions under consideration in the imposition of a penalty. Otherwise, a Union registered under Commonwealth legislation operating nationally would be required to be treated as a collection of Balkan States rather than a nationally governed organisation conducting itself in a way consistent with the objectives of the Commonwealth legislation under which it is registered and legislation under which it operates in the modern Australian environment. In that sense, I respectfully agree with the observations of Kiefel J in Hadgkiss v CFMEU (2007) 162 IR 385 at [9] and [10]. The penalty