Case: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350
Outcome: applied
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 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. In Construction, Forestry, Mining and 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) considered (at 359 [48]) that compliance with the Court's orders by the CFMEU in Queensland was relevant and should have been taken into consideration in assessing the amount of the penalty for the CFMEU's contempt in New South Wales. Their Honours held: "Although constituting only partial compliance, it is a significant step and it does reflect respect for the court's orders and a readiness to comply. The weight to be given to such consideration is of course a matter for the primary judge, but it could not be excluded from consideration as irrelevant or insignificant." In the circumstances of that case their Honours considered that the partial compliance had "considerable importance." The argument advanced in support of the CFMEU's "partial compliance" claim was that the evidence before the Court was not sufficient to allow the Court to make findings that any additional contraventions had occurred. While the CFMEU is entitled to a presumption of innocence in relation to the charges of contempt that were not established, it does not follow that it is entitled to the benefit of a finding of partial compliance with the Order in relation to this conduct. A lack of evidence to establish a charge does not amount to evidence of partial compliance. There was no evidence of partial compliance. Counsel did not identify any act on the part of CFMEU officials and members who were involved in the picket which constituted partial compliance with any of the orders made by Marshall J. On the contrary the CFMEU may have been liable for further contempts had the charges been framed differently. It may well, for example, have been found guilty of contempt had it been charged with failing forthwith to remove obstructing vehicles upon being served with Marshall J's orders. "Personal" circumstances of the contemnor The Applicant highlighted the fact that the CFMEU is a large representative body and referred to the following statement on the CFMEU's website: "[The CFMEU is the] largest and most powerful trade union representing construction workers in Australia. It has members on all major building, and most civil construction projects across the country." The CFMEU invited the Court to ignore the reference to the website. In Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 Tamberlin and Goldberg JJ considered (at 358 [40]), that the fact that contempt had been committed by a large representative body was a relevant consideration in assessing an appropriate penalty: "Generally, it can be said that the adverse impact on the important public interest in the effective administration of justice which results from defiance of a court order or from a failure by a powerful institution or body to comply in a timely manner with an order will generally be more significant than a failure to comply with an order made against a private individual litigant engaged in a personal dispute which does not impact on the community to the same extent. This is a relevant consideration in the present case where the contempt is committed by a large representative body." I respectfully agree. The CFMEU is a large organisation and it deployed considerable resources in order to maintain the obstruction to an important public hospital development. Means of the CFMEU The Applicant next referred to the substantial means of the CFMEU. It tendered evidence which showed that as at 31 December 2007, the CFMEU Construction and General Division National Office had net assets of $8,239,524.00 and the Construction and General Division Victorian Divisional Branch recorded net assets of $39,795,785.00. This was not disputed by the CFMEU; nor did it seek to tender any evidence which demonstrated its current financial position. Absence or presence of prior convictions The question of what, if any, influence awards of costs should have on the determination of penalties for contempt has been considered by a Full Court. In Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 Moore J held (at 354) that it was appropriate to take into account, when determining the penalty, the significant burden likely to have been imposed by the indemnity costs order of the primary judge. Tamberlin and Goldberg JJ agreed, with reservation (at 360): "In light of the authorities referred to by his Honour [(at 351 353)] we accept that in exercising the wide discretion given as to the amount of any penalty, the consideration that indemnity costs have been awarded is a relevant matter to take into account. Nevertheless, given the underlying principle that disobedience to court orders must be discouraged, in a case such as the present, simply to impose a minimal penalty on the basis that indemnity costs have been ordered may be perceived to downplay the significance of the contempt. The contempt here was public, serious and substantial and the penalty should reflect these matters." In 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.