case_text: The parties submitted the following orders, which they joined in asking the Court to make: BY CONSENT THE COURT DECLARES THAT: 1 The First Respondent, between in or about March 2003 and in or about March 2005, by: (a) supplying eggs to retailers and other participants in the food industry, in packaging which stated that the eggs were "Organic", "Organic Free Range" and "Certified Organic by NASAA" (the National Association for Sustainable Agriculture Australia) and cited "Organic Producer No 3282"; and (b) thereby representing that: (i) all eggs labelled as 'organic' were different to eggs not so labelled, having regard to the chemicals, feed and other substances used in the production of the eggs; (ii) all eggs so packaged were certified organic by NASAA; and (iii) all eggs so packaged were produced by NASAA certified Organic Producer No. 3282, when in fact in relation to some of the eggs so packaged: (iv) the eggs were not 'organic' and were not different to eggs not so labelled having regard to the chemicals, feed and other substances used in the production of the eggs; (v) the eggs had not been certified organic by NASAA; and (vi) the eggs had not been produced by NASAA certified Organic Producer No. 3282, has, in trade or commerce: (c) engaged in conduct that was misleading or deceptive or was likely to mislead or deceive in contravention of section 52 of the TPA; and (d) in connection with the supply of goods represented that goods were of a particular standard, quality, value, grade and/or composition which they were not in contravention of section 53(a) of the TPA; and (e) in connection with the supply of goods, represented that goods had approval they did not have in contravention of section 53(c) of the TPA; and (f) engaged in conduct that was liable to mislead the public as to the nature and characteristics of goods in contravention of section 55 of the TPA. 2 The Second Respondent: (a) aided, abetted, counselled or procured the First Respondent in its contraventions of sections 52 , 53 (a), 53 (c) and 55 of the TPA; and (b) was directly or indirectly knowingly concerned in, or party to the First Respondent's contraventions of sections 52 , 53 (a), 53 (c) and 55 of the TPA: by, as the manager of the First Respondent, packing eggs, in packaging which represented, in trade or commerce, that: (c) all eggs labelled as 'organic' were different to eggs not so labelled, having regard to the chemicals, feed and other substances used in the production of the eggs; (d) all eggs so packaged were certified organic by NASAA; and (e) all eggs so packaged were produced by NASAA certified Organic Producer No. 3282, when in fact in relation to some of the eggs so packaged, the Second Respondent knew that: (f) the eggs were not 'organic' and were not different to eggs not so labelled having regard to the chemicals, feed and other substances used in the production of the eggs; (g) the eggs had not been certified organic by NASAA; and (h) the eggs had not been produced by NASAA certified Organic Producer No. 3282. BY CONSENT THE COURT ORDERS THAT: 3 The First Respondent be restrained, whether by itself, its servants or agents or any of them or otherwise howsoever for a period of three years from the date of these orders from, in trade or commerce, supplying eggs in packaging to retailers and other participants in the food industry which represents by the packaging of the eggs that: (a) all eggs labelled as 'organic' are different to eggs not labelled as 'organic', having regard to the chemicals, feed and other substances used in the production of the eggs, when at the time of making the representation, the First Respondent does not have an honestly held belief that the representation is true; (b) the eggs were certified organic by NASAA when they were not so certified; and/or (c) the eggs were produced by a NASAA certified organic producer when they were not so produced. 4 The Second Respondent be restrained for a period of three years from the date of these orders from aiding, abetting, counselling or procuring the First Respondent or any other corporation or being directly knowingly concerned in, or party to, conduct by the First Respondent or any other corporation whether by itself, its servants, agents or otherwise howsoever, in trade or commerce, involving supplying eggs in packaging to retailers and other participants in the food industry which represents by the packaging of the eggs that: (a) all eggs labelled as 'organic' are different to eggs not so labelled, having regard to the chemicals, feed and other substances used in the production of the eggs, when at the time of making the representation, the First Respondent or the other corporation, does not have an honestly held belief that the representation is true; (b) the eggs were certified organic by NASAA when they were not so certified; and/or (c) the eggs were produced by a NASAA certified organic producer when they were not so produced. 5 The Respondents pay the Applicant's costs of this proceeding in an amount agreed between the parties. 31 In consequence of discussions that took place at the hearing, all parties agreed to amend para 2 of these orders, by deleting the subpara designated as (a) altogether, and also by deleting the words "or indirectly", the comma after "in", and the words "or party to". The effect of this would be to make the opening words of the second declaration sought read: The Second Respondent was directly knowingly concerned in the First Respondent's contraventions of sections 52 , 53 (a), 53 (c) and 55 of the TPA by, as the manager of the First Respondent... 32 These amendments are appropriate, to provide certainty to any declaration that the Court might make. It is undesirable that the Court make a declaration containing alternatives, at least where the true position is known, because it makes it appear that the Court does not know what it is declaring. 37 The practice of granting declarations, which are not true declarations of right pursuant to s 21 of the Federal Court Act , appears to have become entrenched in proceedings of this kind. See BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 (2004) 207 ALR 452 at [35] . With the amendments made to them at the hearing, the proposed declarations satisfy the need to be precise, and to inform as to the basis on which the Court has found that the relevant contraventions have occurred. Subject to proper reference to the Trade Practices Act , it is appropriate to grant those declarations. 38 In the circumstances of this case, it is also appropriate to grant injunctions. Notwithstanding the remedial actions taken, the seriousness of the conduct, and particularly the circumstance that it was committed in part while the previous undertaking, involving a trade practices compliance program, was in existence, requires that the Court ensure that any repetition of the conduct can be visited with the more serious consequences attaching to punishment for contempt of court. Of course, there is no threatened or intended future conduct in contravention of any of the relevant provisions of the Trade Practices Act , but an injunction can be granted in the absence of threatened or intended conduct, in consequence of s 80(4)(a) of the Trade Practices Act . Although neither respondent is currently in a position to repeat the contravening conduct, it cannot be guaranteed that that situation will remain. Given their experience in the egg industry, the respondents might well decide to resume activity in it in the future, when any contractual restraint on them has expired. The second respondent may not be responsible for any decision Farm Pride might make to resume involvement in the organic egg business, and might thereby be exposed to temptation of the kind that he could not resist previously. Subject to satisfaction that the terms of the injunctions sought are appropriate, injunctions should be granted. 39 In one respect I have a serious concern about the form of each injunction to which consent has been given. 40 As a matter of principle, if an injunction is to be granted when there is no threatened or intended contravening conduct, such an injunction ought to be limited precisely to preventing a repetition of contravening conduct that has occurred. In the absence of threatened or intended conduct, there can be no justification for an injunction with broader scope, covering possible contraventions that the person subject to the injunction has neither committed before nor threatened or intended to commit in the future. The practical difficulty of limiting an injunction to avoiding a repetition of the contravening conduct in one respect in the present case arises from the absence of any commonly accepted, or recognised standard for determining what is an organic egg. The Macquarie Dictionary gives a number of alternative meanings for the word "organic". One of them is "characteristic of, pertaining to, or derived from living organisms". In that sense, every egg is organic. There can be little doubt that the word "organic" has acquired a colloquial meaning, used to distinguish foods produced without inputs that are regarded as artificial, particularly chemicals. The acquisition of this meaning is reflected in an additional definition, now appearing in the fourth edition of the Macquarie Dictionary : "of or relating to farming and the produce of such farming which does not use chemical fertilisers or pesticides". The colloquial meaning, and even the new definition, are imprecise, however, in that there is no general agreement on precisely what inputs are to be regarded as artificial, or as chemical, and to be avoided in the production of organic foods. This is certainly the case for eggs. 41 The absence of any recognised norm by which to judge whether eggs are, or are not, organic has created difficulty for the ACCC from the outset of this case, in its attempts to frame orders that would express with sufficient precision what the respondents are to be enjoined from doing by way of repetition of their contravening conduct. Initially, the ACCC proposed injunctions prohibiting the respondents from representing falsely by the packaging of non-organic eggs that they were organic eggs. Plainly, such an injunction would be almost impossible to enforce, because of its vagueness. A similar criticism could be levelled at the ACCC's second attempt, which was to enjoin false representations on packaging that eggs were organically produced and consequently were, at a minimum, produced without the use of artificial or synthetic fertilisers, herbicides or pesticides. In addition, this version may not have covered all the possible inputs that some might think should be considered in determining whether eggs are organic. Any reference to a supposed minimum standard was removed in the ACCC's third attempt at amendment. The fourth attempt at amendment would restrain the respondents from: supplying eggs in packaging to retailers and other participants in the food industry which represents by the packaging of the eggs that: (a) all eggs labelled as 'organic' are different to eggs not labelled as 'organic', having regard to the chemicals, feed and other substances used in the production of the eggs, when at the time of making the representation, the First Respondent does not have an honestly held belief that the representation is true... 42 This is the form of order to which the respondents now consent. It introduces an element that has no basis in any of the relevant provisions of the Trade Practices Act . That is the element of honestly held belief in the truth of the representation. Each of the relevant provisions focuses on the misleading or deceptive nature of conduct. It is no defence to an allegation of misleading or deceptive conduct in making a representation that the maker of the representation believed honestly in its truth. Conversely, in proving such an allegation, it is unnecessary to prove the absence of an honest belief. Enforcement of an injunction in the form proposed would require the enforcer to prove the absence of an honest belief, thereby making the issues different in substance from those presented by the provisions of the Trade Practices Act . Counsel for the ACCC attempted to argue that the proposed element of honest belief in the truth of the representation was simply narrowing the ambit of the contravening conduct, repetition of which the ACCC seeks to prevent. In a sense, this is true. Rather than misleading or deceptive representations, the enforcer of the injunction would be required only to prove misleading or deceptive representations within a certain class, namely those as to the truth of which the maker of the representations did not have an honest belief. I do not regard this factor as saving the form of injunction chosen. In my view, the departure from the legislative underpinning of the injunction, by the addition of the requirement of dishonest falsity, rather than simply falsity, is impermissible. 43 I am therefore of the view that the attempts to overcome the lack of a clear criterion by which it can be said that eggs are, or are not, organic have been unsuccessful. In this respect, I would not grant an injunction in any of the forms proposed. In reality, the absence of such an injunction does not amount to a serious omission in the circumstances of this case. The other paragraphs of the injunctions proposed will effectively prevent packaging and supplying eggs as organic if they were not NASAA certified or produced by a NASAA certified organic producer. It is true that the packaging might not make these representations, but might still describe the eggs as organic. If that were to occur, it would simply be an example of the problem that there is no certainty about the meaning of the term "organic" in relation to eggs, and no means whereby it can be determined with any certainty whether eggs are, or are not, organic. 44 For these reasons, I would make orders in the terms sought by consent, subject to the following: a correct description of the name of the Trade Practices Act wherever appearing in the declarations; the amendments to the second declaration to which the parties agreed at the hearing; the omission of para (a) in each of the injunctions, and the consequent redesignation of paras (b) and (c) as paras (a) and (b); the replacement of the "and/or" combination with the conjunction "or" in each of the injunctions; and the amendment of para 5 of the orders, so that it reads "the respondents pay the applicant's costs of the proceeding, fixed at $25,000." I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 16 August 2007 Counsel for the applicant: CM Scerri QC Solicitor for the applicant: Corrs Chambers Westgarth Counsel for the first and second respondents: M Gordon SC Solicitor for the first and second respondents: Arnold Bloch Leibler Date of hearing: 22 March 2007 Date of judgment: 16 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1246.html


case_outcome: applied

case_text: The discretion under s 80(2) to grant an interim injunction is conferred in wide terms. In this regard it is analogous to the discretion vested in the Court by s 838 of the Workplace Relations Act 1996 (Cth). It is therefore appropriate to note the following observations of the Full Court in CPSU, The Community and Public Sector Union v Commonwealth of Australia (2006) 157 IR 470, 473 at [14]-[18]: '14 The Court's discretion under s 838 of the WR Act to grant an interim injunction is conferred in wide terms. Nonetheless, the discretion must be exercised judicially; that is, ' not arbitrarily, capriciously or so as to frustrate the legislative intent' ( Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 per Gaudron and Gummow JJ at [22]). Additionally, as the discretionary power to grant interlocutory injunctions has a long history, the discretion is to be exercised according to established principles ( Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 per Gleeson CJ at [10]). 15 It is well established that a proper purpose of an interlocutory injunction is to maintain the status quo until the rights of the parties can be determined at final hearing ( ABC v Lenah Game Meats per Gleeson CJ at [9]-[10]). 16 The principles governing the grant or refusal of interlocutory injunctions have recently been confirmed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 (' O'Neil l'). Gleeson CJ and Crennan J at [19] observed: "... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) [1968] HCA 1 ; 118 CLR 618] should be folIowed.' (footnotes omitted)" 17 In O'Neill Gummow and Hayne JJ at [65] stated: 'The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd . This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. ... With reference to the first inquiry, the court continued, in a statement of central importance for this appeal: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." (footnotes omitted) 18 At [70] Gummow and Hayne JJ make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase 'serious question' if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham Group Limited v Bristol Laboratories Pty Ltd. At [71] their Honours emphasise that the governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.'


case_outcome: referred to

case_text: The discretion under s 80(2) to grant an interim injunction is conferred in wide terms. In this regard it is analogous to the discretion vested in the Court by s 838 of the Workplace Relations Act 1996 (Cth). It is therefore appropriate to note the following observations of the Full Court in CPSU, The Community and Public Sector Union v Commonwealth of Australia (2006) 157 IR 470, 473 at [14]-[18]: '14 The Court's discretion under s 838 of the WR Act to grant an interim injunction is conferred in wide terms. Nonetheless, the discretion must be exercised judicially; that is, ' not arbitrarily, capriciously or so as to frustrate the legislative intent' ( Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 per Gaudron and Gummow JJ at [22]). Additionally, as the discretionary power to grant interlocutory injunctions has a long history, the discretion is to be exercised according to established principles ( Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 per Gleeson CJ at [10]). 15 It is well established that a proper purpose of an interlocutory injunction is to maintain the status quo until the rights of the parties can be determined at final hearing ( ABC v Lenah Game Meats per Gleeson CJ at [9]-[10]). 16 The principles governing the grant or refusal of interlocutory injunctions have recently been confirmed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 (' O'Neil l'). Gleeson CJ and Crennan J at [19] observed: "... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) [1968] HCA 1 ; 118 CLR 618] should be folIowed.' (footnotes omitted)" 17 In O'Neill Gummow and Hayne JJ at [65] stated: 'The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd . This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. ... With reference to the first inquiry, the court continued, in a statement of central importance for this appeal: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." (footnotes omitted) 18 At [70] Gummow and Hayne JJ make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase 'serious question' if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham Group Limited v Bristol Laboratories Pty Ltd. At [71] their Honours emphasise that the governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.' 26 Mr Simpson has sworn an affidavit in which he explains the conduct of Socasen in respect of its rollover obligations under the Agreement in the following way: 'The reason why [Socasen] has been behind in its rollovers with [Caltex] is that on completing the rollovers debts crystallise for the payment of royalties. Having regard to [Caltex's] conduct to [Socasen] and [Socasen's] financial position as to a result thereof and Caltex's ability to withdraw monies from [Socasen's] bank account, I was reluctant to bring the rollover up to date as that would have provided a trigger for Caltex to take away any surplus from [Socasen's] cash flow.' 27 It is conceded by Caltex that there is a serious question to be tried as to Socasen's entitlement to an award of damages by reason of the pleaded problems with the On Q system and, possibly, by reason of underpayment of REM entitlements. 28 No such concession is made concerning any claim by Socasen for relief in respect of the termination notice. I use the expression 'any claim' because Socasen has not amended the claims for relief in its application following the service of the termination notice. I consider it appropriate to proceed on the basis that at trial Socasen will probably seek an injunction under s 80 of the TPA restraining Caltex from placing reliance on the notice of termination or, alternatively, an order under s 87(1) of the TPA effectively reinstating the Agreement (s 87(2)(b) and (ba)).


case_text: Minister for Immigration & Citizenship v Le [2007] FCA 1318 (2007) 164 FCR 151 at [60] - [67] , Kenny J discussed at some length the authorities concerning the circumstances in which a Tribunal established by the Migration Act may be obliged to pursue further information before making a decision. At [60], her Honour referred to two propositions. The first is that such a Tribunal "has no general obligation to initiate enquiries or to make out an applicant's case for him or her." The second proposition, which her Honour described as a "limited proposition" is that "in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223". At [63], her Honour said: The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry...In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries. I respectfully adopt her Honour's formulation of the relevant propositions of law. There can be no doubt in the present case that the question whether the appellant was regarded by the Malaysian authorities as having converted to Islam was critical to the outcome of the appellant's case. It was the Tribunal's rejection of the appellant's claim to be what the Tribunal described as a "proselyte Muslim" that led the Tribunal not to accept his claim that he had been detained and beaten by the religious police. So much is revealed by the passage from the Tribunal's reasons for decision quoted in [21] above. The importance of the issue is underlined further by the fact that the Tribunal took the trouble to refer in detail in its reasons for decision to the exchange that took place between the Tribunal member and the appellant's representative at the Tribunal hearing, to which I have referred in [12] above. If it had been possible for the Tribunal to find out that the appellant's evidence that the information in the chip in his identity card did disclose that he was classified as a Muslim, this may well have caused the Tribunal member to accept the claim that the authorities regarded the appellant as a Muslim, and therefore as an apostate in seeking to marry a Hindu woman according to Hindu rites. In its reasons for decision, when it discussed evidence as to religious freedom in Malaysia, the Tribunal referred specifically to a case of a Muslim woman and a Hindu man who married in a Hindu temple in July 2006. The Muslim woman's home was raided by officers of the Selangor Islamic Affairs Department on 28 April 2007, her Hindu marriage was deemed void and she was placed in detention for religious rehabilitation for being in close physical proximity to a man other than her husband. There can be little doubt that, if a similar fate had befallen the appellant, he would have been subjected to persecution for the reason of his religion. The importance of the issue is not sufficient to require the Tribunal to undertake its own searches for evidence. The second proposition of law enunciated by Kenny J in Le requires that the evidence be readily available, and that the Tribunal either know or be in a position to know of its availability. There was no indication given to the Tribunal as to how any data embedded in the chip in the appellant's identity card might be obtained by the Tribunal. It is not readily apparent that access to such data would be possible. The appellant did not advance any suggestion to the Federal Magistrates Court. The only suggestion the appellant's counsel made on the hearing of the appeal was that the Tribunal could have had access to the devices used by officers of the Department of Immigration and Citizenship to read information embedded in microchips embedded in passports. Whether such devices, or the software they use, would be compatible with those required to interpret the data in a Malaysian identity card is a matter of speculation. There was no obvious way in which the Tribunal could have gained access to any data embedded in that card. On this ground, the appellant does not bring himself within the narrow principle referred to by Kenny J. The cause of any scars borne by the appellant was a less critical issue. As the passage I have quoted in [21] demonstrates, the principal reason for the Tribunal's rejection of the appellant's claim to have been detained and beaten by religious police was its refusal to accept that he was regarded as a Muslim. Having rejected the claim that the appellant was detained and beaten by religious police on that basis, the Tribunal then pointed out that the limited evidence about scars did not enable the Tribunal to identify the nature or likely cause of those scars. At best, there could have been evidence of expert opinion that scars borne by the appellant were consistent with his account of torture. Such evidence would not have gone far enough to require the Tribunal to find that the scars had been inflicted by torture. Even if the Tribunal had been persuaded by opinion evidence as to the consistency of the scars with their infliction by torture, it would not have been required to find that the torture had been inflicted by the religious police in Malaysia, by reason of an official view that the appellant was a Muslim and ought not to follow the Hindu religion or seek to marry according to Hindu rites. It is unlikely that the Tribunal would have reached this conclusion, because it had disbelieved the appellant on these claims as a result of disbelieving his claim that the authorities regarded him as a Muslim. For another reason as well, evidence of expert opinion about consistency between scars and the appellant's claim as to how he got them would not fit within the limited principle to which Kenny J referred. Evidence of that nature is not readily available to the Tribunal. It would be necessary to identify an appropriate expert and to ensure that the expert examined the appellant and provided a report to the Tribunal. An appropriate expert might well wish to charge a fee. It is unlikely that the Tribunal would have money available within its budget to pay the fees of experts, in order to obtain evidence in individual cases. If the appellant had wished to rely on expert evidence about the scars, it was always open to him to consult an appropriate expert, pay any necessary charges, and obtain a report, which he could have tendered to the Tribunal. In the circumstances of this case, he could not cast upon the Tribunal the burden of doing what he had not done. The Tribunal has an express power, given by s 427(1)(d) of the Migration Act to require the Secretary to the Department of Immigration and Citizenship to arrange for a medical examination that the Tribunal thinks necessary with respect to a review, and to give the Tribunal a report of that investigation or examination. The word "may" is used in conferring the power. By s 33(2A) of the Acts Interpretation Act 1901 (Cth), the use of the word "may" denotes the conferral of a discretion to exercise a power. In the case of the power conferred by s 427(1)(d), the power can only be exercised if the Tribunal thinks that a medical examination is necessary with respect to the review it is conducting. Apart from anything else, the inconclusive nature of any expert opinion in relation to the claim of the appellant about torture makes it unlikely that the Tribunal would have reached the conclusion that a medical examination was necessary. The Tribunal did not reach such a conclusion and it is impossible to say that it was required to do so. For these reasons, the federal magistrate was correct to reject the appellant's application to the extent that it was based on the Tribunal's failure to take steps to ascertain what information was in the microchip in his identity card and to the extent that it was based on the suggestion that the Tribunal should have taken steps to obtain evidence of an expert nature in relation to the appellant's scars. The document handed up on the day of delivery of the decision The federal magistrate was correct to hold that the Tribunal was obliged to consider any evidence the appellant provided to it prior to the time when it had completed the performance of its statutory function. His Honour was also correct in finding that the additional document handed to the Tribunal officer on the day of the handing down of the decision was provided to the Tribunal before it had completed the performance of its statutory function. On appeal, counsel for the Minister did not take issue with either of these propositions. It follows from them that the Tribunal had failed to take account of material it had received before the completion of its statutory function, as it was obliged to do. The federal magistrate was correct to recognise this. The refusal of the federal magistrate to grant relief on the basis of this jurisdictional error was based solely on the fact that the Tribunal member had looked at the document after the handing down of its decision and decided that it was satisfied that there was no need to alter the decision. What happened is expressed in what is described as a "case note", apparently written by the Tribunal member concerned, and dated 26 February 2008, ie. six days after the handing down of the decision. The note reads as follows: I have considered the document at folio 112 that was given to the handing down officer after handing down had commenced and note the following: - The applicant was represented by a registered migration agent throughout the review application. - The applicant and the representative were told at the Tribunal hearing on 18 December 2007 that they could provide additional evidence in support of the review application to the Tribunal up until the decision was handed down. - The applicant's representative was advised by fax on 12 February 2008 that the decision would be handed down at 10.30am on 20 February 2008. - The applicant told the handing down officer that he had received the document at folio 112 the week before the handing down on 20 February 2008 and suspected that the decision would be adverse to him. - However, the applicant did not choose, in these circumstances, to provide this particular document to the Tribunal until after the handing down process had actually commenced on 20 February 2008. - In the circumstances, the Tribunal considers itself "functus officio" in this case - In any event, the Tribunal observes in this case that, whilst it has had regard to the document provided to the handing down officer on 20 February 2008, the document is untranslated and therefore the Tribunal is not in a position to verify its contents. Nor can the Tribunal determine to what extent this evidence would have assisted the applicant's claims for refugee status and whether or not it would have altered the Tribunal's decision. In the circumstances, the Tribunal is satisfied that there is no need for it to alter its decision in this case.


case_outcome: cited

case_text: power the Tribunal thought it was exercising in looking at the document is not clear. If, in truth, it had completed the performance of its statutory function, the Tribunal could not look further at the merits of the case. Its adverse comments about the appellant's delay in handing up the document could not form part of any proper exercise of its powers. The Tribunal member could only have looked at the additional document for the purpose of determining whether the Tribunal's decision was tainted by jurisdictional error. If it found that there was jurisdictional error, the Tribunal could then disregard the decision and proceed to deal with the matter again. See Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In looking at the document, the Tribunal member wrongly concluded that the Tribunal had completed the performance of its statutory function. If it had recognised that the handing down of the decision without consideration of the additional document amounted to jurisdictional error, it could not have reached that conclusion. The Tribunal member also wrongly proceeded to determine whether consideration of the document would have altered the Tribunal's decision. The conclusion was that there was no need for the Tribunal to alter its decision. The Tribunal had no power to alter its decision. It had a power to deal with the matter afresh if it reached the conclusion that there was jurisdictional error. If it had dealt with the matter afresh, it would have been forced to decide whether it would refuse to consider the document on the ground that it was in a language other than English and untranslated. It is well-established that the Tribunal cannot refuse to consider material that is written in a language other than English. See X v Minister for Immigration & Multicultural Affairs [2002] FCA 56 (2002) 116 FCR 319 at [26] - [31] per Gray J and [49]-[52] per Moore J. The Tribunal could have obtained its own translation of the document, or could have invited the appellant to provide a translation, verified in some appropriate way.


case_title: X v Minister for Immigration & Multicultural Affairs [2002] FCA 56 (2002) 116 FCR 319


case_text: 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 & 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 & 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_text: Applicant submitted that the CFMEU should be fined between $200,000.00 and $250,000.00 in relation to each of the two incidents of contempt and sought its costs on an indemnity basis. The Applicant urged the Court to impose an effective penalty, lest serious and lasting damage to the fabric of the law result: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 115 (" Mudginberri Station "). The CFMEU accepted that it should pay the Applicant's costs of the penalty hearing, on a party-party basis, and submitted that a penalty in the sum of $10,000 was appropriate. It was submitted that, as the application for contempt was only partly successful, each party should bear its own costs of the two motions for contempt. PARTICIPATION OF THE ABCC Section 31(1) of the Federal Court of Australia Act 1976 (Cth) identifies the power possessed by this Court to punish contempts: "Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court." The power possessed by the High Court to punish contempts is specified in s 24 of the Judiciary Act 1903 (Cth): "The High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England." When the Judiciary Act 1903 (Cth) commenced, the Supreme Court of Judicature in England had power to punish for contempt, whether civil or criminal: see Mudginberri Station at 105-106. The penalties the Court may impose depend on who is identified as the respondent to the proceeding: see High Court Rules 2004 (Cth) r 11.04.1. In this case, the only respondent was the CFMEU. None of the individual officers or members involved in the contempts was named as a respondent. Where, as here, the contemnor is a body corporate, r 11.04.1 (b) of the High Court Rules 2004 (Cth) provides that the Court may order: "... that the contemnor pay a fine, that some or all of the property of the contemnor be sequestrated or that both the contemnor pay a fine and some or all of the property of the contemnor be sequestrated." The 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 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 & 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 & 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." 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. The Applicant also submitted that the defiance of the Order was public in nature: see Mudginberri Station at 108. The Applicant tendered the transcript and a sound recording of a radio interview of Bill Oliver, Victorian Branch Secretary of the CFMEU Construction and General Division, in support of this contention. The tender was not objected to by the CFMEU, save as to relevance. The interview took place on 25 February 2009, the third day of the contempt hearing. It was broadcast on 774ABC radio. When asked by the interviewer "[w]hy are your members blocking access to the site?", Mr Oliver replied "Well, we've got a problem down there ... and we've ended up in a court situation, sort of thing, at the moment." It was clear that Mr Oliver was referring to this Court. The Order was not mentioned. Counsel for the CFMEU contested the submission that the CFMEU was in public defiance of the Court's order. He contrasted the circumstances in Mudginberri Station where the union was found to be in public defiance of the court's order because the secretary of the union had stated publicly that the union would not pay the fine imposed by the Court with Mr Oliver's remarks. A public announcement of defiance of the kind which occurred in Mudginberri Station may readily be characterised as being "public in nature". The statement was made in circumstances where it was plainly intended that it would be reported and it was, in fact, widely disseminated in the media. Although Mr Oliver was interviewed on a radio station he did not make any statement that the union was defying or was intending to defy orders made by this Court. Plainly he was aware of the proceeding and he knew, or ought to have known, of the orders made by Marshall J. He did not, however, acknowledge that the union was acting in defiance of them. I do not, therefore, consider that the statements made by Mr Oliver during the radio interview can be said to have expressed defiance of the Court's orders. There were, however, a number of acts of public defiance of the Court's orders at the Site. When presented with copies of the orders by representatives of the Applicant, a number of the CFMEU's officials either refused to accept them or allowed them to fall to the ground despite being advised of the nature of the documents. Statements were also made by some of the officials to the effect that they would act on advice from the union office rather than have regard to the terms of the orders which they were told required them to desist from obstructive action. This conduct occurred outside the Site gates and in the presence of employees of the Applicant. They constituted public acts of defiance even though they were not publicised to the wider community. Such defiance is not to be treated with the same gravity as defiance of the kind which occurred in Mudginberri Station . It is, however, a matter of relevance in fixing a penalty in the present case. Deterrence


case_outcome: considered

case_text: developing this contention the CFMEU relied on comments made by Gray J in Australian Competition & Consumer Commission v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517. In that case, three unions admitted to engaging in conduct in contravention of s 45D of the Trade Practices Act 1974 (Cth) and agreed that each union should pay a penalty of $100,000.00. Gray J stated that he would have imposed a penalty considerably less than that agreed and, as the penalties were uniform, considered that no attempt had been made to attribute relative blame amongst the respondents. His Honour noted that: The CFMEU emphasised the statement by Gray J (at [8]) that, "[i]n these circumstances, to call upon the respondents each to pay such a large sum from their resources, which ultimately come from the pockets of wage-earners appears to be excessive." However, tellingly, his Honour also said (at [10]) that "[a] factor that would tend to increase the size of the penalty is that the picket continued to be operated despite the orders of the Australian Industrial Relations Commission." It is also necessary to bear in mind that his Honour was not dealing with a charge of contempt, but with a penalty for admitted breaches of the Trade Practices Act where the penalty was capped by statute and in circumstances where the parties had agreed on a penalty which was greater than that his Honour would have otherwise ordered. Importantly, his Honour specifically held that, a breach of orders, made by the Commissioner, would warrant the imposition of a more severe penalty than might otherwise be called for. No evidence was submitted by the CFMEU as to its financial position, or how the payment of a fine would penalise "innocent persons" not involved in the contempt. On the limited evidence before me, it is difficult to see how the payment of a fine would penalise "innocent persons" except in the sense that any monetary penalty which is paid out of the union's funds would not be available to be applied to activities which might be thought to advance the interests of members. This will always be the result whenever a union is required to pay a penalty for contempt or a contravention of some statutory provision. It cannot operate as a bar to the imposition of penalties. A court may impose a lower penalty if the offending conduct is carried out by rogue officials and members. Where, as is presently the case, the conduct is that of elected officials who were acting in the course of their duties, the fact that ordinary members of the organisation may, perhaps, be affected by the imposition of a penalty, will weigh far less heavily. If the members are dissatisfied with the conduct of the officers who have engaged in or condoned the offending conduct they may vote against them when they next stand for election. The effect of the contempt on the administration of justice The CFMEU sought to argue that the contempts did not have a significant adverse effect on the administration of justice. In this context it also relied on its submissions that the Court should have regard to the fact that the objectives of the Order were not circumvented and there was no loss or damage as a result of the contempt. For the reasons outlined above, I either do not accept these submissions or accord them little weight. In addition, the CFMEU contended that it was entitled to rely on the presumption of innocence in relation to the charges laid by the Applicant which were not established and that it was proper for the Court to consider what it described as its "partial compliance" with the Order.


case_text: 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 & 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 & 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." 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 & 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_text: 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. 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 & 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 In my view, the position remains that, where a contemnor has admitted the contempt, genuine contrition and a full and ample apology may reduce the penalty: see, for example, Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 97 IR 474 ; Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24. However, where, as here, the charges of contempt are contested, the absence of an apology by the contemnor does not carry any significant weight in the sentencing process.


case_text: my view, the position remains that, where a contemnor has admitted the contempt, genuine contrition and a full and ample apology may reduce the penalty: see, for example, Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 97 IR 474 ; Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24. However, where, as here, the charges of contempt are contested, the absence of an apology by the contemnor does not carry any significant weight in the sentencing process.


case_text: 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 & 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 & 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 & 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 & 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 & 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.


case_text: 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 & 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 & 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 & 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 & 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.


case_text: 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 & 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 & 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 & 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 & 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 & 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.


case_text: 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_text: 19 February 2009 and again on 23 February 2009 officials and members of the Respondent ("the CFMEU") obstructed and interfered with the passage of vehicles seeking to enter the New Royal Children's Hospital Site, in breach of an order made by Marshall J on 19 February 2009 ("the Order"). I have found that the CFMEU thereby committed contempt of Court: see Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (2009) 254 ALR 306; [2009] FCA 194. It is now necessary to determine appropriate penalties for these contempts. The 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 & P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B & 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_text: 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 & 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 & 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 & 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 & 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.


case_text: 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 & 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 Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 , the CFMEU was found guilty of contempt by reason of "its conduct in breaching the Order made against it ... by failing immediately to cease strike action, namely, the authorizing of its members to stop performing work at the Applicant's coal mines in New South Wales." Hundreds of CFMEU members were involved in the strike at coal mines in New South Wales and Queensland. Counsel for the CFMEU submitted that it was the Mining and Energy division of the CFMEU that was convicted of contempt in that case, and that division had no involvement with Victoria, or the Victorian Divisional Branch of the Construction and General Division of the CFMEU, which was the autonomous division of the CFMEU involved in the contempt in this case. 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 & 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 & 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 & 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 & 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.


case_title: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1994) 94 IR 231

case_text: Leighton Le Miere J was called on to determine the appropriate penalty to be imposed on the CFMEU for contraventions of s 38 of the Building and Construction Industry Improvement Act (Cth) and followed the approach taken by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 , which accepted that previous contraventions of Pt XA of the Workplace Relations Act 1996 (Cth) were a relevant consideration in determining the appropriate penalty for a subsequent contravention of Pt XA of that Act. His Honour continued: "It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the [CFMEU] anywhere in Australia. The [CFMEU] is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the [CFMEU] are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the [CFMEU] through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation..." (Emphasis added).


case_title: Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243


case_text: 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 & P Caelli Construction Pty Ltd [2006] FCA 1221 ; Ponzio v B & 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_text: 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 & 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_text: this case, the Applicant's case was only partly successful. This gives rise to the possibility of an apportionment of costs: see, for example, Hughes v Western Australian Cricket Association (Inc) [1986] HCA 72 ; [1986] ATPR 48 ,134; Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172.


case_title: Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172


case_title: Jones v Toben (No 2 ) [2009] FCA 477


case_text: 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 & 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 Leighton Le Miere J was called on to determine the appropriate penalty to be imposed on the CFMEU for contraventions of s 38 of the Building and Construction Industry Improvement Act (Cth) and followed the approach taken by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 , which accepted that previous contraventions of Pt XA of the Workplace Relations Act 1996 (Cth) were a relevant consideration in determining the appropriate penalty for a subsequent contravention of Pt XA of that Act. His Honour continued: "It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the [CFMEU] anywhere in Australia. The [CFMEU] is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the [CFMEU] are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the [CFMEU] through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation..." (Emphasis added).


case_text: in the proceeding for contempt, Mr N J D Green, of Queen's Counsel, announced that he appeared for the Australian Building and Construction Commissioner ("the ABCC") and sought leave to be heard. Again, Senior Counsel for the CFMEU objected. I indicated that I would hear Mr Green on matters on which only the ABCC was able to assist the Court: see Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 604-5. He made short oral submissions. Counsel for the ABCC sought to emphasise the matters the ABCC considered the Court should pay regard to when determining the appropriate penalty. These matters largely reflected those emphasised by the parties. As a result, I did not consider that the ABCC was able to assist the Court in dealing with the question of what, if any, penalty should be imposed.


case_text: 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: In my view, the position remains that, where a contemnor has admitted the contempt, genuine contrition and a full and ample apology may reduce the penalty: see, for example, Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 501; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 97 IR 474 ; Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24. However, where, as here, the charges of contempt are contested, the absence of an apology by the contemnor does not carry any significant weight in the sentencing process.


case_title: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72


case_title: Pine v Expoconti Pty Ltd (2005) 147 IR 426


case_outcome: distinguished

case_text: 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 & 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_title: Ponzio v B & P Caelli Construction Pty Ltd [2006] FCA 1221