Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275

Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 - VSC 2013 case summary — Zoe

[125]

46 McAdam gave oral evidence about what he had observed earlier that same morning (Tuesday 28 August 2012) in relation to events at the Emporium site. Mr Gray produced various videos and photographs taken that morning in the vicinity of the site. All of that evidence was led by Mr North SC, who apparently held senior counsel's brief for Grocon on the applications for interim and interlocutory restraining orders in the underlying proceeding. As indicated above, the application on 28 August 2012 was for an order to extend until the trial of the underlying proceeding some of the interim restraining orders which had been made by the Chief Justice on 22 August 2012. On the other hand, it seems that senior counsel's brief for Grocon in relation to the contempt matters has at all relevant times been held by Mr McDonald SC. In any event, during the initial hearing of the first contempt application on 3, 4 and 5 September 2012, although Grocon tendered 16 exhibits (exhibits P 1 to P 16), it did not tender or expressly seek to rely upon the evidence which had been given by McAdam or by Gray on 28 August 2012. Indeed, although he noted that I had previously heard from McAdam,[19] Mr McDonald called both of those gentlemen afresh. He took McAdam through his recollection of the events of 28 August 2012 from the beginning. He also adduced evidence from Gray identifying afresh the videos and photographs which had been produced on 28 August 2012 (as well as adducing other evidence from him). Confirming my impression that no reliance was being placed by Grocon on any of the evidence that had been given by the two witnesses on 28 August 2012, Mr McDonald proceeded on 5 September 2012, as mentioned above,[20] to seek and obtain an order dispensing with any requirement under the Rules of Court that evidence in the first contempt application be given by affidavit in respect of the evidence given orally on 3 and 4 September 2012. The order, as sought and made, referred specifically to the evidence given by McAdam and Gray on 3 September 2012, but not to the evidence given by either of them on 28 August 2012.

[134]

Although Wigmore deprecated the utility of the metaphor to which Dawson J referred, it does helpfully describe two distinct kinds of reasoning. Sometimes a jury is satisfied beyond reasonable doubt because of an accumulation of detail, especially an accumulation of detail bearing on a critical issue in the case. The intention of the accused may, for example, be a critical issue and there may be six or seven facts which, taken together, establish beyond reasonable doubt what the accused's intention was, even if none of those facts is itself established to the criminal standard. We all reason like that in the common affairs of life; such reasoning is not confined to the jury room; the six or seven facts are aptly described as "strands in a cable" of proof. There are other cases where sequential reasoning is necessary or appropriate. Fact A may be probative of guilt only if fact B is true and fact B may be true only if fact C in turn is true. If there is no other evidence bearing on a critical issue, each of those facts must be proved beyond reasonable doubt. The jury cannot treat facts B and C as strands in a cable of proof. Each of them is an "indispensable link in a chain".

It does not follow that, wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt. The qualification, "[i]f there is no evidence bearing on a critical issue" is important. A jury may be invited to conclude that the accused is guilty by reference to seven facts, one or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable. If the judge said that one of the links in the chain establishing one of the seven facts did not need to be established beyond reasonable doubt, that would betray no error of logic. The jury would consider that link in that chain only for the purpose of deciding whether one of the strands of the cable was present. If it was, it would be part of the accumulation of detail. If it was not, the other six facts might be sufficient on their own to satisfy the criminal standard of proof.

[153]

At common law, the test of attachment of criminal responsibility was neatly summarised by Brennan J in Environment Protection Authority v Caltex Refinery Co Pty Ltd, as follows:[50]

A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities. It cannot be subjected to the corporal penalties to which a natural person who offends against the criminal law can be subjected. Yet it can be held criminally liable. The weight of authority shows that, with some exceptions, a corporation may be criminally liable where the proscribed act done or the proscribed omission made by a corporation's officer or agent can be treated as having been done or made by the corporation with the mental state possessed by the person or persons who did or authorized the doing of the act or permitted the making of the omission, whether or not the officers or agents of the corporation are also liable. There may be an alternative basis of a corporation's criminal liability, namely, as an aider, abettor, counsellor or procurer of the offence committed by the human principal offender. Whatever basis of liability is applied, criminal liability can be sheeted home to a corporation only upon proof that what is done or omitted to be done and the mental state with which the act was done or the omission was made are within the scope of the authority conferred by the corporation upon the person or persons on whose act, omission or state of mind the corporation's criminal liability is said to depend. The prosecution of a corporation thus requires proof of more than the conduct of particular natural persons which satisfies the elements of an offence. Proof of those additional issues, linking the artificial entity with the relevant elements of the offence, often depends entirely or substantially on proof of documents in the corporation's possession or power. Moreover, some offences arising from the creation of danger or a failure to exercise care may be caused by organizational defects provable only by production of corporate records.

The weight of authority supports the view that in order to attach liability to a corporate entity for contempt, it must be shown that the corporate entity authorised the act complained of or failed to take proper steps to prevent the contemptuous conduct occurring.[51]

As to the scope of authority conferred upon the individuals through whom the corporate entity acts, the following propositions arise from the authorities.

[159]

64 Turning to the office holders of the CFMEU, I am satisfied beyond reasonable doubt that for the period from 28 August 2012 to 5 September 2012 (and indeed for the whole of the period from 1 January 2012 until 10 September 2012), the 13 persons listed in the table set out in paragraph 64 of Grocon's written closing submissions filed on 5 October 2012 held the CFMEU offices specified for them respectively in the table. Those persons are David Noonan, Bill Oliver, John Setka, Ralph Edwards, Noel Washington, Elias Spernovasilis, Frank O'Grady, Shaun Reardon, Derek Christopher, Gareth Stephenson, Theo Theodorou, Danny Baradi and Craig Johnston. I am so satisfied principally by reason of the matters set out in paragraphs 58-69 of Grocon's submissions. As those paragraphs state, the CFMEU, being a registered organisation, was required by s 230 of the FW(RO) Act to keep a record that contained a list of the offices in the organisation and each branch of the organisation, and a list of the names, postal addresses and occupations of the persons holding those offices. Once in each year, between 1 January and 31 March, the CFMEU was required to lodge with FWA a copy of those records, certified by declaration by the secretary or other prescribed officer of the organisation to be a correct statement of the information contained in the records - ie the "annual return" (s 233 FW(RO) Act).[62] The CFMEU was also required (by s 233(2) of the FW(RO) Act) to notify any change to the list of officials by lodgement with the FWA within 35 days.[63] Ms Carruthers has duly identified the annual return lodged by the CFMEU in 2012 which includes a comprehensive list of offices and officeholders within the CFMEU as at 1 January 2012. The abovementioned table of 13 persons is in accordance with the annual return. The evidence of Ms Carruthers establishes that no change was notified to FWA by the CFMEU in relation to any of the 13 persons in question up until 10 September 2012. It is true that, theoretically, there might have been a relevant change in the 35 day period between 5 August 2012 and 10 September 2012, being a change which the CFMEU, without breaching the 35 day limit, might have omitted to notify to the FWA. However, as I have already mentioned, although the position of the CFMEU is that, generally speaking, its silence cannot be used against it in this case, its senior counsel frankly acknowledged that, in view of the evidence in the case, the silence of the CFMEU on the particular topics of the rules and the officials could appropriately be used against it to confirm that "the officials were in effect agents of the CFMEU".[64] Indeed, in relation to Mr Setka in particular, Mr Morrissey had earlier said: "It's true that Mr Setka is an official, you will find on the evidence here, that you'd find that he is a CFMEU official".[65]

[207]

96 McAdam impressed me as a frank and reliable witness. He did not use colourful or inflammatory language. He made appropriate concessions. He seemed to be doing his best to assist the Court. He was giving his evidence quite soon after the happening of the events in question and he had generally been in a good position to see what he reported. Indeed it seems that, from the outset, it had been a responsibility of his within Grocon to observe and note matters of relevance to the case. Out of fairness to the CFMEU, I put to Mr Morrissey during final submissions that, subject to hearing from him, my impression was that McAdam had given his evidence in a moderate and restrained way and that I was inclined to accept him as a reliable witness.[105] Mr Morrissey's response was to the effect that there were facts alleged by McAdam about which I would be entitled to have doubt, but "without impugning his honesty in the least".[106] Mr Morrissey acknowledged that it had not been put to McAdam that he was a liar. Indeed, Mr Morrissey very fairly conceded that I would be entitled to rely on McAdam as a reliable source of facts, so far as they were within his knowledge. He further accepted that McAdam was not gilding the lily or exaggerating, but rather was simply calling things as he saw them. On the other hand, Mr Morrissey submitted that there was a question as to the value of the opinions that McAdam had formed on the ground. He gave as an example McAdam saying that a "majority" of persons were wearing CFMEU branded clothing whereas, according to Mr Morrissey, I would be able to see from the television footage that, while there were some such persons, they were not a majority. That did not mean, Mr Morrissey said, that McAdam was a liar. Rather, "that's just what he saw, and that's probably what he was looking for". However, Mr Morrissey did not during this discussion (or otherwise) identify any particular passage of evidence given by McAdam that was contradicted by television or video footage. Mr Morrissey may have had in mind the four items of television and video footage which are referred to in footnote 27 of the CFMEU's closing written submissions. Those items are referred to there in support of the proposition contained in para 7.3 of the submissions that the "overwhelming majority" of the members of the crowd present in the vicinity of the Emporium site on 28 August 2012 were not wearing CFMEU branded clothing. However that may be, and whatever those videos may be thought to show, McAdam has given no evidence to the effect that the majority of the members of that particular crowd were wearing CFMEU branded clothing. Mr Morrissey did not cross-examine McAdam about any of the observations that McAdam did make about the wearing, on other occasions, of CFMEU branded clothing. Indeed Mr Morrissey did not challenge McAdam on this general topic at all.

[212]

100 For some time prior to 28 August 2012, the Grocon group and the CFMEU had been engaged in a bitter industrial dispute. According to what McAdam understood from Grocon's industrial relations manager, the CFMEU had been demanding that the Grocon group employ persons nominated by the CFMEU as shop stewards or as health and safety officers and Grocon was refusing to do this.[108] The CFMEU characterised the industrial issues somewhat differently.[109] The dispute came to a head. On Friday 17 August 2012, as indicated above, Grocon went to Court. It alleged that there was obstructive picketing at the McNab site and that the CFMEU was responsible for it. Grocon obtained from me a temporary order in relation to the McNab site. The order was extended by the Chief Justice in the Practice Court on Tuesday 21 August. On Wednesday 22 August 2012, as I have also mentioned, Grocon went back to the Practice Court. It alleged that obstructive picketing had begun at the Emporium site and that the CFMEU was responsible for it. It adduced detailed affidavit evidence in this regard.[110] Again, the CFMEU stayed away. The Chief Justice made the orders referred to above. Nevertheless, according to Grocon, obstructive picketing continued at the Emporium site. Work at the Emporium site certainly stopped. The industrial dispute between the Grocon group and the CFMEU remained unresolved. Tensions were high. A CFMEU-stamped flyer was handed to McAdam by a group of 3 persons near the Little Bourke Street entrance to the Myer department store on 23 August 2012. It proclaimed that construction of the Myer Emporium had ground to a halt and that: "It will be a long time before shoppers enjoy the new Myer Emporium unless Grocon changes its ways".[111] In an affidavit sworn 27 August 2012, McAdam deposed that, since the commencement on 22 August 2012 of the behaviour at the Emporium site of which Grocon complained, Grocon had not directed its employees or contractors to attempt to enter the Emporium site. McAdam proceeded in the affidavit to give the following unchallenged evidence, which I accept, as to McAdam's observations at the Emporium site and as to the nature of Grocon's (and McAdam's own) concerns in this regard:

[243]

126 Shortly after this, McAdam observed a female police officer approach the scene. It transpired that it was the abovementioned Senior Sergeant Jody Buckley, who later gave evidence in this case. In her evidence she said that she had been placed in charge of approximately 30 police officers who had been deployed to the vicinity of the Emporium site that morning. She received a radio call from another police officer, Inspector Jackson, to attend the footpath area outside the Queen Victoria building to request the Grocon staff to re-enter their office.[153] She observed "approximately 30" people there whom she identified as "Grocon workers". However there is nothing to indicate that she had a particular reason to note how many Grocon workers were present. As I have mentioned, McAdam was later cross-examined about the numbers.[154] I am satisfied by his evidence that there had been approximately 110 to 115 Grocon workers and staff standing under the Queen Victoria building from about 6.50 am onwards. McAdam had been at the gathering of Grocon workers and staff that had taken place earlier on 28 August 2012 in the meeting room at the Grocon head office. So he had a clear basis to know, at least approximately, how many workers and staff there were. Otherwise, I accept Snr Sgt Buckley's evidence. I accept that she approached the Grocon workers and in a loud voice asked them to go back into their office. She confirms that there were "some CFMEU workers", "probably four or five of them", standing to the side, having a discussion with a small number of Grocon workers. Indeed, she explained that she had been requested to go over to that point because Inspector Jackson had told her something along the lines that a discussion had been occurring between Grocon workers and CFMEU members.[155] Snr Sgt Buckley observed that most of the Grocon workers started dispersing and going back inside following her request. A few were lingering back and she asked Mr Van Camp to ensure that they also returned inside. They were sent home within 10 or 15 minutes of returning to the office area.[156]

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