mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pine v Seelite Windows &amp; Doors Pty Ltd [2005] FCA 500
Outcome: distinguished
lack of evidence that any loss and damage was sustained as a result of the CFMEU's misconduct is not a factor which weighs heavily in its favour. The CFMEU relied on Pine v Seelite Windows &amp; Doors Pty Ltd [2005] FCA 500 to support this element of its case. Pine involved contraventions of s 187AA of the Workplace Relations Act 1996 (Cth) which prohibited an employer from paying an employee during a period when the employee was engaged in industrial action. Four employees were inadvertently paid $656.72, approximately half of which covered the period of industrial action, in breach of s 187AA. Finkelstein J noted that not every contravention of every law needs to be punished and determined not to impose any penalty in the circumstances. His Honour said at [10]: "... No harm has been done to anyone. The contravention was inadvertent. It is unlikely to occur again. The amount of wages involved is insignificant. In these circumstances it would be quite wrong to punish the respondents. Nothing would be achieved by the imposition of a pecuniary penalty. There is no need for a specific deterrent: it is simply not necessary. And if any penalty were imposed it would be so low that it could not act as a general deterrent." In my view, this decision does not assist the CFMEU. His Honour was dealing with a trivial and inadvertent breach of a civil penalty provision. He was not concerned with deliberate contemptuous conduct. No issue involving the undermining of the community interest in the effective administration of justice was involved. Moreover, as I have said, a penalty imposed to punish contempt is not designed to compensate for any loss suffered by those affected by the contempt. Such compensation must be sought through other legal avenues. It is usual for the Court to order that a penalty for contempt be paid into the Consolidated Revenue Fund not to any party who can establish that it suffered economic loss by reason of the misconduct.
Case: Ponzio v B &amp; P Caelli Construction Pty Ltd [2006] FCA 1221
Outcome: referred to
Applicant submitted that the conduct of the CFMEU in this proceeding, (see generally Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194 at [23] - [29] , [32]-[33]), was such that the Court could not be confident that the CFMEU would be deterred from engaging in similar conduct in the future unless a significant penalty were imposed. It was accepted by the CFMEU that there was a need for specific and general deterrence where contempts of Court have occurred. Counsel for the CFMEU submitted that the legal expenses which it had incurred in relation to the case constituted a significant deterrent, independently of any monetary penalty which might be imposed. They contended that it was proper for the Court to take into consideration the "significant burden imposed by any costs order against [a] respondent": see BHP Steel at [13] and [53]; and the fact that the defending of the proceeding had involved a cost burden on the CFMEU. The CFMEU's legal costs were said to be $78,000. In support of this contention, the CFMEU also relied on Ponzio v B &amp; P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B &amp; P Caelli Consturctions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Pine v Expoconti Pty Ltd (2005) 147 IR 426; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705.
Case: Ponzio v B &amp; P Caelli Consturctions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543
Outcome: considered
Applicant submitted that the conduct of the CFMEU in this proceeding, (see generally Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194 at [23] - [29] , [32]-[33]), was such that the Court could not be confident that the CFMEU would be deterred from engaging in similar conduct in the future unless a significant penalty were imposed. It was accepted by the CFMEU that there was a need for specific and general deterrence where contempts of Court have occurred. Counsel for the CFMEU submitted that the legal expenses which it had incurred in relation to the case constituted a significant deterrent, independently of any monetary penalty which might be imposed. They contended that it was proper for the Court to take into consideration the "significant burden imposed by any costs order against [a] respondent": see BHP Steel at [13] and [53]; and the fact that the defending of the proceeding had involved a cost burden on the CFMEU. The CFMEU's legal costs were said to be $78,000. In support of this contention, the CFMEU also relied on Ponzio v B &amp; P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B &amp; P Caelli Consturctions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Pine v Expoconti Pty Ltd (2005) 147 IR 426; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705. The additional cases relied on by the CFMEU involved contraventions of civil penalty provisions. In those cases it was accepted that the trouble and cost of defending the proceeding served the purpose of personal deterrence. The Full Court in Ponzio v B &amp; P Caeli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 did not, however, consider that the need for general deterrence would be met unless a monetary penalty was also imposed: see at [97], [164]. In any event and for the reasons earlier articulated, I consider that cases concerning contraventions of civil penalty provisions to be of limited assistance where contempts of court have occurred. In the circumstances of this case deterrence both specific and general is an important consideration. The penalty must be imposed at a meaningful level so as to deter the CFMEU, and others who, save for the risk of a high penalty, may otherwise engage in contravening conduct: see generally Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 at [24] ; Trade Practices Commission v CSR Ltd [1991] HCA 7 ; [1991] ATPR 52 ,135 (41-076). The fact that a contemnor has incurred legal expenses in defending charges is to be borne in mind when a penalty is determined but this consideration does not weigh heavily in mitigation of penalty. Apology or contrition
Case: R v Wattle Gully Goldmines N.L. [1980] VR 622
Outcome: referred to
CFMEU was also concerned that "the Court should be careful not to impose a penalty misdirected at the members of the respondent." As I understood this part of its argument it came down to this: union members should not be penalised for the actions of officials over whom they had no control. They would be so penalised if a monetary penalty were to be imposed on the union rather than on the officials and members who had participated in the contemptuous conduct. It was submitted that it was open to the Applicant to name the CFMEU officers involved in the incidents on 19 and 23 February 2009 as respondents to the contempt proceeding. It had chosen not to do so. As a result, so it was contended, any penalty imposed against the CFMEU would penalise innocent persons, the ordinary members of the CFMEU who had not been involved in the conduct, rather than being directed at those who had engaged in the offending conduct: see R v Wattle Gully Goldmines N.L. [1980] VR 622. Payment of the penalties would diminish funds contributed by members which would otherwise have been directed for their benefit.
Case: Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496
Outcome: referred to
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.
Case: Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169
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.
Case: Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd (No 2) [2008] FCA 1965
Outcome: referred to
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."
Case: Trade Practices Commission v CSR Ltd [1991] HCA 7 ; [1991] ATPR 52 ,135 (41-076)
Outcome: referred to
additional cases relied on by the CFMEU involved contraventions of civil penalty provisions. In those cases it was accepted that the trouble and cost of defending the proceeding served the purpose of personal deterrence. The Full Court in Ponzio v B &amp; P Caeli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 did not, however, consider that the need for general deterrence would be met unless a monetary penalty was also imposed: see at [97], [164]. In any event and for the reasons earlier articulated, I consider that cases concerning contraventions of civil penalty provisions to be of limited assistance where contempts of court have occurred. In the circumstances of this case deterrence both specific and general is an important consideration. The penalty must be imposed at a meaningful level so as to deter the CFMEU, and others who, save for the risk of a high penalty, may otherwise engage in contravening conduct: see generally Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 at [24] ; Trade Practices Commission v CSR Ltd [1991] HCA 7 ; [1991] ATPR 52 ,135 (41-076). The fact that a contemnor has incurred legal expenses in defending charges is to be borne in mind when a penalty is determined but this consideration does not weigh heavily in mitigation of penalty. Apology or contrition
Case: Veen v The Queen [1979] HCA 7 ; (1979) 143 CLR 458
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.
Case: Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465
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.
Case: Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548
Outcome: followed
submissions are not novel. They have been rehearsed in a number of the authorities relied on by the CFMEU. These authorities have recently been reviewed by Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. Prior convictions incurred as a result of misconduct by another autonomous division or branch of the CFMEU will not be taken into account where the character of the conduct is different from the conduct in question. This is because of the dissimilarity of the offending conduct and not because of the degree of autonomy accorded to divisions and branches by the CFMEU rules. As Jessup J pointed out in Williams , an earlier offence of the CFMEU is no less an offence by that corporate body because it was committed by a division or branch other than the one responsible for the offence presently under consideration. Moreover, as his Honour observed, "the deterrent effect of a penalty would be significantly compromised if the court were obliged to turn a blind eye to a prior contravention merely because it occurred in a different division or branch of an organisation": at [20]. Both BHP Steel and the present case involved contempts of Court, occasioned by the breaching of an injunctive order. I consider that the conviction in BHP Steel is a relevant prior conviction. Public nature of the defiance
Case: Witham v Holloway (1995) 183 CLR 525
Outcome: applied
public interest in the administration of justice requires compliance with all orders and undertakings: see Witham v Holloway (1995) 183 CLR 525 at 532-533. In Witham the High Court said (at 533): "All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties." The submission that the penalty imposed ought to reflect the fact that the objectives of the Order, as perceived by the CFMEU, were not circumvented is misconceived. In my view, it reflects the cavalier attitude taken by the CFMEU to the Order and the Court, and misconstrues the objective of the Order. The Order prohibited the CFMEU, whether by itself, its officers, servants, agents or howsoever otherwise from doing any act, or directing, advising or authorising, or doing or continuing any act to aid, abet, counsel, procure, encourage or induce any person to obstruct or interfere with the passage of any person, whether on foot or in a vehicle proceeding into or from the Site. The immediate purpose of the Order was to ensure that access to the Site by persons and vehicles should not be impeded. The Order was ignored. CFMEU officials and members were responsible on two occasions for obstructing the passage of vehicles which could otherwise have entered the Site. It was purely fortuitous (if it be the case) that the impugned conduct did not disrupt work on the Site It is no answer to say that the contempt was constituted by omissions or to seek to diminish the gravity of the contempt by relying on the conduct of the drivers of the obstructed vehicles. Furthermore, the claim that the offending conduct was constituted by omissions cannot be accepted. CFMEU officials parked union-owned vehicles across the entrance to the Site. From time to time vehicles were removed and replaced by other vehicles. A tent or marquee was erected in such a position as to prevent the opening of one of the gates. The only sense in which the conduct of the officials and members might properly be characterised as involving omissions is that it included the failures and refusals to move the obstructions when requested to do so by representatives of the Applicant and as required by the Order.
Case: Bertran v Vanstone [2000] FCA 359 , 173 ALR 63
Outcome: followed
The statutory expression " in force " is to be construed as requiring consideration simply to be given to " whether a person had been accused of a criminal offence and whether that accusation had led to the initiation of criminal proceedings ": Bertran v Vanstone [2000] FCA 359 at [55] , [2000] FCA 359 ; 173 ALR 63. 21 For the purposes of the Motion, any challenge to the manner in which the Minister exercised the power conferred by s 16(2) on this basis has no reasonable prospects of success. 22 Moreover, such further evidence as is now before the Court on the present Motion seems to amply support a finding that the warrant remains in force and that there is no reason to question that conclusion, even now. Thus, an " Opinion " dated 16 April 2007, as subsequently provided under the signature of the Senior Chief Public Prosecutor for the Hannover Department of Public Prosecutions, states in part as follows: ...The detention order by the Regional Court of Hannover dated September 16, 2003 was generated in the manner provided by law and fulfils the rules of the StPO [German Code of Criminal Procedure] under formal aspects as well. The allegation of the prosecuted person that the detention order had expired in December 2005 is not true. According to StPO, an order for detention awaiting trial shall only become invalid, when it is lifted by a court... That Opinion stands in contrast to an affidavit filed in proceedings in the Australian Capital Territory by Mr Karsten, being an annexure to an Affidavit filed in the present proceedings in this Court, that asserts: ... The warrant provided with the extradition request expired in December 2005 according to my sources ... No further details were provided nor were the " sources " identified. For present purposes, it is considered that no conclusion is open other than that the warrant remains " in force ". Further written submissions filed on 5 March 2008 by Mr Karsten seek to annex further materials. Some of these materials are in German and have not been translated into English. To the extent that the Court has been able to consider those materials, the conclusion remains the same.