Case: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining &amp; Energy Union [2002] FCA 702
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. 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. The 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.