Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors

111 In the present case, as will be seen, the CFMEU denies that there was any conduct of the first kind. It could not really deny that there was conduct of the second kind, but it says that such conduct should not be categorised as public defiance at all for present purposes. I would reject that latter submission. In my view, mere visibility to others, especially visibility to the general public, may make contemptuous conduct more contumacious and more serious generally, at least in some circumstances.

112 In any event, I do not consider that public defiance of either kind is a necessary condition for a finding of contumacy. No authority establishes any such proposition. As to the first category of public defiance, any suggestion that public defiance of that kind is a necessary condition for a finding of contumacy would of course be quite inconsistent with the South Australian cases to which I have referred above. Further, it would involve a misunderstanding of the ordinary meaning of contumacy and perhaps confusion with the word "contumely". Thus, in Commissioner for Fair Trading v Voulon,[175] a contempt case decided in the Supreme Court of Western Australia, Miller J said:

Counsel for the plaintiff contended that there had been a contumacious disobedience on the part of the first and fourth defendants to orders 12(ii) and 23(ii) of the orders of Hasluck J. However, the word "contumacious" means what has been termed "a perverse and obstinate resistance to authority". The following passage from the judgment of Sir John Megaw in Re Jokai Tea Holdings Ltd[176] sets out the meaning of the word "contumacious" for the purpose of these proceedings:

"The noun 'contumely', as defined in the Shorter Oxford English Dictionary reflecting, I believe, the sense in which it would ordinarily be understood, is 'Insolent reproach or abuse'. The conduct of the defendants, having regard to all the circumstances, could not be described as 'contumelious'. With all respect, it seems to me that the word 'contumacious' would be more apt than 'contumelious' in the passages in Lord Diplock's discussion of the effect of failure to comply with a peremptory order in Allen v Sir Alfred McAlpine & Sons Ltd,[177] and in Birkett v James.[178] 'Contumacy' means 'Perverse and obstinate resistance to authority'. Surely it is that characteristic, not 'insolent reproach or abuse', which is a frequent hallmark of a litigant's failure to comply with a peremptory order?

113 To say that there is a real and significant distinction in this context between contumacious behaviour and contumelious behaviour is fully consistent with certain remarks made by Dixon CJ, Fullagar, Kitto and Taylor JJ in John Fairfax and Sons Pty Ltd v McRae.[179] Their Honours were speaking in 1955, when the courts still perceived a sharp division between civil and criminal contempt:[180]

It is necessary, Sir John Fox says, to begin by distinguishing between different kinds of contempt of court. A party disobedient to the order or process of a court is often said to be "in contempt". In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes - contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law.

114 Contumacy has been found in contempt cases where the conduct in question was not accompanied by any defiant communication and occurred far from public view. A clear example is Deputy Commissioner of Taxation v Gashi & Anor (No 3)[181] where Dixon J was satisfied that there had been wilful disobedience and contumacious disregard of the Court's orders by "clandestine" behaviour.[182] Likewise, in Livingspring Pty Ltd v Ng,[183] I found contumacy in a private transfer of funds in breach of a freezing order, being a transfer that was not disclosed until after it had occurred. In Haritopoulos Pty Ltd v Scott,[184] Nettle JA (with whom Buchanan and Neave JJA agreed) identified "contumacy"[185] on the basis of wilful and deliberate conduct which consistently thwarted the fundamental purpose of each of two orders, being orders designed to put receivers in possession of certain premises and assets, in circumstances where the contemnors were well aware of the effect of each order and were determined to ignore them.[186] Speaking of the second order in particular, Nettle JA said:[187]

The order required them to deliver up the assets and yet they steadfastly refused to do so. ... It was not for the appellants to decide that they would rather pay compensation than obey the court's orders. As the judge found, they had the capacity to return the chattels if they chose to do so. Thus as the judge said, correctly, their actions in seeking to keep the chattels set the process of the court at nought.

The trial judge (Dodds-Streeton J) had imposed substantial fines on both the individual contemnor and his company and had sentenced the individual contemnor to a term of imprisonment of 30 days. The Court of Appeal reduced the fines to a certain extent but upheld the sentence of imprisonment.

115 Of course, a contemnor's disobedience of a court order may be both contumacious and contumelious.[188] But it need not be contumelious to be criminal.

The Emporium and McNab contempts: civil or criminal?

116 I turn now to the detailed submissions of the parties in this case on the issue of classification of the contempts found in the first and second contempt applications. (I will come to the contempts found in the third application in due course). I begin with summaries of the parties' respective written submissions, as relevant.

117 The basic contention in the written submissions of the Grocon plaintiffs on this issue is that the findings of contempt which I made in the first and second contempt applications support a conclusion that the CFMEU disobeyed the Court's orders in a deliberately defiant and intentional way, and was acting contumaciously.[189] The Grocon plaintiffs say that the CFMEU is a large organisation and deployed considerable resources in order to maintain its obstruction to a significant construction site in the heart of the Melbourne central business district. They point out that senior officials of the CFMEU attended at both sites.

118 The Grocon plaintiffs submit, both for present purposes and in relation to penalty generally, that the circumstances of the relevant contempts were unprecedented. Quoting from the findings of fact set out in my previous judgment, the Grocon plaintiffs rely on the following matters:

(a) The scale of the "public defiance" of the Court's orders -

(i) On 28 August 2012, approximately 1,000 people were procured by the CFMEU to attend the Emporium site;

(ii) On 29 August 2012, approximately 1,200 persons were procured by the CFMEU to attend the site;

(ii) On 30 August 2012, approximately 400 persons were procured by the CFMEU to attend the site;

(iv) On 31 August 2012, approximately 1,000 persons were procured by the CFMEU to attend the site;

(v) On 5 September 2012, Mr Setka and Mr Reardon and approximately 30 or 40 other men were at the McNab site.

(i) Despite police involvement on 28 and 31 August 2012, the crowds blocked or restricted access by persons to the Emporium site;

(ii) On 28 August 2012, 14 police officers on horseback and other police on foot carrying protective equipment were involved;

(iii) On 31 August 2012, approximately 20 mounted police, barricades and other officers on foot were involved.[190]

(c) The involvement and/or attendance of many senior officials of the CFMEU including -

(i) at the Emporium site, John Setka, Bill Oliver, Shaun Reardon, Ralph Edwards, Derek Christopher, Elias Spernovasilis, David Noonan, Gareth Stephenson, Craig Johnstone, Frank O'Grady and Danny Baradi; and

119 The Grocon plaintiffs also refer to what they describe as public statements of defiance made by the CFMEU and its officials.[191] However there is a real issue as to whether any of the statements relied upon should be taken as referring directly or indirectly to the orders made by the Court. I will return to this debate shortly.

120 The Grocon plaintiffs submit that the immediate purpose of the Court's orders was to ensure that free access to the Grocon sites by persons and vehicles should not be impeded. The Grocon plaintiffs say that the Court's orders "were ignored".[192] The Grocon plaintiffs point out that the conduct of the CFMEU which was ultimately found to be in contempt occurred in part after the filing and service of the further amended version of the first contempt application on 30 August 2012. They submit, correctly, that the CFMEU was clearly on notice of the making of the Court's orders and that it was also on notice of the first contempt proceeding when it again breached orders of this Court. As the Grocon plaintiffs submit, the CFMEU not only breached the orders of this Court but also chose not to attend numerous court hearing dates of which it had been given notice, until its first appearance on 20 September 2012.

121 The Grocon plaintiffs submit that the "public nature" of the CFMEU's defiance of the Court's orders was a particularly aggravating feature. They submit that the conduct of the CFMEU was "an affront to the rule of law".[193]

122 In this regard, the Grocon plaintiffs refer to the fact that the Emporium site, being located right in the middle of the Melbourne CBD, was shut down on each of 28, 29, 30 and 31 August 2012. I interpolate that, although that is true, there is no finding that the CFMEU's conduct was a sufficient cause for the entire shutdown. That point was not litigated. The Grocon plaintiffs refer to the disruption to persons using public transport along Swanston Street and to persons using Lonsdale Street and Little Bourke Street as thoroughfares. They submit that, inevitably, "the continuing public defiance of Supreme Court orders in the heart of Melbourne undermined public confidence in the rule of law".

123 The Grocon plaintiffs refer to certain judicial statements which highlight the seriousness with which courts view a deliberate breach of an order.[194] They submit, correctly, that such a breach is even more serious where it is committed by a large representative body such as the CFMEU.[195] They point out that not only were the orders in question served on the CFMEU but copies were published at both sites. They describe the contraventions of the Court's orders by the CFMEU as "very public in nature". They submit that the CFMEU made it plain that its "blockade"[196] at the Emporium site would remain in place despite the Court's orders. They say that the evident purpose of the "blockade" was to coerce Grocon into accepting the CFMEU's objectives in relation to the industrial dispute. They submit that the CFMEU's attention was focused on furthering its position in the industrial dispute without regard to the authority of the courts and its obligation to abide by the Court's orders. They submit that, by the very public show of force and the very public disregard for the Court's orders, the CFMEU's conduct was a serious interference with the administration of justice.[197]

124 The submissions of the Attorney-General in this regard are similar in effect. He submits that the CFMEU's conduct falls to be punished as a "most serious contempt of court".[198] He contends that the contempts were contumacious. He says:[199]

The Attorney-General submits that a singular feature of the contempts is the direct and public challenge that they represented to the authority of the court and the rule of law. The contempts were committed over a number of days, for a number of hours, and involved a high degree of organisation. They manifest obvious and public defiance of the court's orders. Accordingly, the court should find that classifications of criminal contempt are appropriate for each of the five findings.

Public defiance is demonstrated by each of the following matters:

(a) the number of persons involved in the contempts at the Emporium Site;

(b) resistance to police; and

(c) public statements of defiance, either direct or implicit.

The Attorney-General acknowledges that the contempt at the McNab site involved a smaller number of people, but, like the Grocon plaintiffs, he submits that it is significant that two senior officials of the CFMEU were present and active, and readily identifiable as such.[200]

125 Once again, in relation to the conduct at the Emporium site in particular, reliance is placed by the Attorney-General on certain public statements made by the CFMEU or its officials as referred to in my reasons on liability. There can be no doubt that these statements asserted firm determination to continue the conduct which was later found to be in contempt. However, as I have said, whether the statements were targeted at the Court is another matter.

126 The Attorney-General also refers to my findings concerning the interaction between the crowds and the police members and police horses, particularly on 28 and 31 August 2012 at the Emporium site, and to my observation that the clash involving the police horses on 28 August 2012 demonstrated "the determination of the CFMEU officials and the assembled men (and, through both of them, the CFMEU) to resist any outside attempt to interrupt their stance".[201] Like the Grocon plaintiffs, the Attorney-General points to a number of cases in which courts have emphasised the relationship between the administration of justice and the power to punish for contempts committed by disobedience of court orders, including the relatively recent comment of Tracey J in Alfred v CFMEU (No 2)[202] relating to the power to punish a contempt:

It is the means by which the law vindicates the public interest in the due administration of justice and is the way in which the Court preserves respect for its role and the rule of law.

127 The written submissions of the CFMEU[203] as to the classification of the five contempts which I found in the first and second contempt applications begin with the following general and procedural contentions. A contempt may go well beyond the innocuous standard of "casual, accidental or unintentional" but fall short of contumacious criminality. A useful touchstone is supplied by the "scandalising" quality of criminal contempt in the form of "scandalising the court".[204] Contempts constituted by disobedience of orders committed in the industrial context are not normally dealt with as criminal in nature. The plaintiffs, including the Attorney-General, have elected not to proceed with any criminal charge of contempt. Although there may be no bar in principle to considering the matter at the penalty phase,[205] it is not in the interest of justice to do so here. The imposition of criminal liability would not have any utility beyond the penalty of a fine. Deferral of characterisation is inconvenient. It generates two trials on criminal liability. In this case, it exposed the CFMEU to two quite differently structured sentencing submissions.

128 Turning from general and procedural matters to the facts of this particular case, the CFMEU's written submissions continue as follows. The mere public nature of the dispute and the breaches arising cannot suffice to render those breaches contumacious. The number of persons involved is not relevant to contumaciousness. The existence of a crowd did not of itself breach the orders. The evidence does not admit any inference as to the nature and degree of organisation involved. In any event, organisation does not suggest contumacy. As to the resistance to the police manoeuvre on 28 August 2012, the Court found that the acts of the officials and the crowd were evidence of the determination of the CFMEU to "resist any outside attempt to interrupt their stance".[206] Determination to resist is not coterminous with contumacious defiance. The incident flared up in circumstances which the plaintiffs chose not to elucidate. There are situations in which public statements of defiance might lead to a finding of contumacy[207] but none of the reported utterances on 28 August 2012 express defiance of the relevant orders. The Court later used that material to infer that the office bearers, and hence the CFMEU, had control over the crowd. But the orders themselves were not mentioned by the officials, expressly or implicitly. There were no relevant utterances on 29 or 30 August. The chanting on 30 August was not a breach. The comments of Oliver and Edwards on 31 August 2012 are relevant to liability and may have relevance to specific deterrence at penalty, but they are not contumacious. On 5 September, the comments attributed by Mr Rigg to Setka and Reardon (calling Rigg a "rat" and a "dog") are not contumacious. The document bearing the CFMEU's stamp that was distributed at the Mirvac Tower 8 site on 5 September 2012[208] cannot be attributed to the CFMEU. In any case, it refers to the "protest", but not to the orders of the Court. Nor does any other media material establish contumacy. The contemporaneous material is plainly not contumacious. Post facto comments by Oliver or Setka, made weeks or months later, cannot render the proved breaches contumacious. In the alternative, even if the breach on 28 August be characterised as contumacious, the breaches on the following days are not. The CFMEU's actions were of an entirely different order on 29, 30 and 31 August. No attempt was made to enter the site. It is true that the protest impacted upon traffic. However, it was not a contempt to hold the protest. The contempt consisted in obstructing the free access of designated persons. The scale of the police response is not itself an indicator of severity. The reasons for the scale of the police presence are unproved. It is not plain that it was necessitated by a public disturbance. No criminal charges have been laid. In Williams v AFMEPKIU[209] there had been a police presence but it was not viewed as an aggravating feature. The CFMEU takes no issue with the cases describing the important interests protected by the contempt jurisdiction, but the impact of the breaches here is not shown to be grave. No evidence has been led to disturb the obvious impression that the justice system, its orders having been breached, now responds in a measured manner. The CFMEU has submitted to the jurisdiction and faces a fine by way of punishment. It is true that the Grocon plaintiffs lost the benefit of the orders made, but that is so in all contempts by breaches of orders. What is not shown is that a real or financial detriment was caused, which could not be made good.

129 The matters relied upon in the CFMEU's written submissions as to whether the relevant contempts should be classified as criminal or not were addressed, to a greater or lesser extent, by written reply submissions filed by the Grocon plaintiffs and the Attorney-General respectively.[210] The issue was then thrashed out at some length during the oral hearings.[211]

130 As I will further explain, having taken into account all of the matters referred to in my reasons on liability, the submissions of each party and the relevant sentencing principles and considerations referred to above, I am satisfied beyond reasonable doubt, in relation to each of the four Emporium site contempts and the McNab site contempt, that the CFMEU's disobedience to the relevant orders of the Court was contumacious within the meaning of the relevant authorities and should be classified as criminal contempt. I will deal with the question whether it is appropriate to actually record criminal convictions in relation to those five contempts after I have considered all matters relevant to penalty. My further reasons for these conclusions are as follows.

131 As to the threshold procedural point, although senior counsel for the CFMEU indicated formally that the CFMEU relied upon its abovementioned written outline of submissions on penalty, nevertheless he did not elaborate on the complaint therein that it was too late at this penalty stage to consider or determine whether the CFMEU's disobedience involved contumacy or amounted to criminal contempt or warranted criminal convictions. In any event, I accept the reply submission of the Attorney-General on this point. As he submits, all parties had proceeded on the basis that classification would be determined at the penalty stage. To proceed in that way was fully consistent with what had been said, and apparently accepted, in the presence of counsel for all parties during the original liability hearing. With the apparent concurrence of all counsel, Mr McDonald (for the Grocon plaintiffs) had said: [212]

So as to the characterisation of the contempt as a civil or a criminal contempt, that is a matter which could be dealt with we would say conveniently in a penalty hearing.

132 The Attorney-General pointed out that I had taken a similar course in Livingspring Pty Ltd v Ng.[213] The only relevant difference is that I did make a finding of contumacy as part of my reasons on liability in Livingspring. However, I did not at that stage proceed to the point of classification. In any event, the course taken in the present case did not involve any unfairness to the CFMEU. A suggestion made at one stage by the CFMEU - that it was incumbent on the moving parties to specify in the charges that findings of contumacy and of criminal contempt were sought - was not pressed. Indeed, senior counsel for the CFMEU ultimately conceded expressly that it would not be open to me as a trial judge to find that there was any such requirement in law.[214] Further, as mentioned above, senior counsel for the CFMEU properly conceded, in the context of the debate over the joinder of the Attorney-General, that both the Grocon plaintiffs and the Attorney-General had made it plain from the beginning that findings of criminal contempt would be sought in the first and second contempt applications in due course.[215]

133 Turning to the substantive aspects of the classification issue, I respectfully disagree with the main premise underlying most of the CFMEU's arguments. In particular, I consider that those arguments proceed on a wrong understanding of the meaning, for present purposes, of contumacy. I do not accept that the form of criminal contempt known as "scandalising the court" provides a usual touchstone. It is largely a self-contained category. It relates to contumelious conduct, rather than contumacious conduct. In effect, the CFMEU would substitute "contumely" for "contumacy" in the present context. The error involved in such an approach was pointed out by Miller J in Commissioner for Fair Trading v Voulon,[216] as indicated in the passage from his Honour's judgment set out above. In my opinion, for the purposes of this branch of the law of contempt, it is not necessary that the alleged contemnor make any express or implied reference to the relevant court or to its authority or to its relevant orders before a finding of contumacy may be made, or that the alleged contemnor must make some insulting or dismissive reference thereto. It follows that, while I agree that the CFMEU is substantially correct in asserting that there is no evidence that any representative of the CFMEU made any express or implied contemporaneous statement acknowledging that the CFMEU was acting in breach of the orders of the Court, I do not regard that circumstance as determinative of the present question. However, it is otherwise relevant. It shows that the contempt of the CFMEU might have been worse. It affects my assessment of the overall seriousness of the contempt and it is relevant to classification in that way.

134 In my view, the conduct of the CFMEU in relation to the events at the Emporium site on 28, 29, 30 and 31 August 2012 and at the McNab site on 5 September 2012 was plainly contumacious in that it amounted to "perverse and obstinate resistance to authority".[217] It involved deliberate defiance. It occurred in public. It was, for the most part, highly visible to the general public. In that sense, at least, there were elements of "public defiance". Although, as I have indicated, I do not consider that public defiance (in any sense) is essential to a finding of contumacy, or to the transformation of civil contempt into criminal contempt, the elements of public defiance that were involved in the CFMEU's conduct serve to increase the level of contumacy and the general seriousness of the CFMEU's disobedience to the relevant orders.

135 It is worth repeating that, by the CFMEU's own admission, the CFMEU was promptly and duly served with each of the relevant orders and had knowledge of the terms of those orders.[218] Each order contained a formal notice warning the CFMEU that it was liable to be penalised, by sequestration of assets or otherwise, if it disobeyed the order.[219] My findings on liability, which were necessarily made on the criminal standard (beyond reasonable doubt), included a finding that the relevant orders were clear, unambiguous and capable of compliance,[220] and a finding that the CFMEU had breached the orders by deliberately causing persons to obstruct access to the building sites.[221]

136 The relevant restraining orders were made by this Court on three different days.[222] They were made in connection with continuing fallout from a bitter, long standing and highly prominent industrial dispute between Grocon and the CFMEU.[223] It is inconceivable that the CFMEU did not (by its senior officials) give consideration to the restraining orders as and when they were served. Yet, almost immediately after the last of them was served, the CFMEU began to breach them. It breached them not just once, but repeatedly.[224]

137 During the oral hearings, I asked senior counsel for the CFMEU why I should not infer that, in August and September 2012, the CFMEU either knew or was reckless as to whether what it was doing was in breach of the orders.[225] I did so in the course of a discussion about the use, if any, that I could or should make of a certain comment made by Mr Setka shortly after the publication of, and in relation to, my judgment on liability of 24 May 2013. Mr Morrissey's first response to my question was to say that I certainly could not have regard to Setka's comment in May 2013 in assessing what the Union knew or believed in August or September 2012 as to whether it was in breach of the orders. In the circumstances, I accept that particular submission of Mr Morrissey, although I will return later to Setka's comment which, as Mr Morrissey conceded, is relevant to the question of penalty generally and to the factor of deterrence in particular. In further response to my question, Mr Morrissey made a passing reference to an interview with Mr David Noonan, the National Secretary of the Construction and General Division of the CFMEU, on the Today Show on the morning of 4 September 2012, which is referred to at paragraph 231 of my reasons on liability. Only part of that interview is reproduced in my judgment. The full transcript is in evidence. It shows that the interviewer put to Noonan that the conduct of the Union had been declared to be illegal by this Court. That description of the effect of the orders made by this Court to that time was not precisely accurate. To that time, the Court had not made any formal declaration as such. On the other hand, the Court had made interlocutory restraining orders which, in a sense, declared the law applicable to the parties for the period during which they were to be enforced.[226] However, the interviewer did not squarely put to Noonan that the conduct of the Union represented a breach of the restraining orders. Nor did Noonan directly address himself to that point. The nearest he came was to say:

... What you are seeing there is a peaceful protest which is legal and legitimate under Australian ...

In my view, the interview with Noonan is largely neutral. Of course, Noonan was not speaking on oath. Nor was he otherwise giving testimony. The evidence was tendered originally by the Grocon plaintiffs, who had sought to rely upon it as evidence of public defiance. While I do not think it assists the moving parties in that respect (because there was no acknowledgment of breach), I would give it no weight as evidence that the CFMEU was unaware that it was in breach of the relevant orders, or that the CFMEU had some doubt about that. For completeness, I should add that, in my view, the same applies to the (single) reference to the Supreme Court made by the then Branch Secretary, Bill Oliver, which is set out in paragraph 227 of my reasons on liability.

138 In any event, in further discussion with Mr Morrissey on this point, I asked him whether it was the CFMEU's submission that I should proceed on the basis that the Union may have been in some doubt as to whether it was breaching the orders.[227] His response was to say that, as a result of my findings on liability, the clarity of the orders could no longer be said to be in doubt. The CFMEU had attempted to put a particular cast on the orders, but that attempt had been rejected. Mr Morrissey confirmed that it had never been put by the CFMEU that the orders were incapable of obedience. Indeed, Mr Morrissey conceded that, in view of my findings on liability, I must proceed now on the basis that the orders were clear and capable of being complied with, that they were served, that the Union fully understood them and that the Union nonetheless chose to disobey them.[228] In my view, those concessions were properly made. Accordingly, I will proceed on the basis that in August and September 2012, in relation to both the Emporium site and the McNab site, the CFMEU knowingly, deliberately and repeatedly defied the orders of this Court. In my view, that amounts to contumacy.

139 Nevertheless, in deciding whether to declare the contempts to be criminal and whether to record criminal convictions, the Court should also consider the level of contumacy involved and the overall seriousness of the contempts.[229]

140 As mentioned above, where a contempt is committed by a large representative body its general seriousness is the greater. That is the situation here. The CFMEU did not submit to the contrary. It could hardly have done so in view of the following remarks made by Tamberlin and Goldberg JJ in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd:[230]

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.

This feature applies equally to the Emporium site contempts and the McNab site contempt.

141 I accept to an extent the submission of the moving parties that the contempts at the Emporium site were unprecedented. That is to say, I accept that they were unprecedented in the sense that they involved features which, at least in combination, had not been seen in any previous decided contempt case.

142 The CFMEU was unable to refer me to any previous comparable case involving the procuring of such large numbers of persons. Nor am I aware of any such case. The CFMEU did mention that in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors[231] - a case relating to applications for penalties under the Building and Construction Industry Improvement Act 2005 (Cth) concerning industrial action by picketing and protesting for which two unions, including the CFMEU, were variously responsible it was noted by Jessup J that on one of the days in question the number of "protestors" at a relevant work site had reached a maximum of about 500 persons.[232] However, the judgment indicates that that incident occurred in an industrial area near the corner of Lorimer and Sardine Streets in Port Melbourne, underneath the West Gate Freeway near to the eastern end of the West Gate Bridge. It does not appear from the judgment of Jessup J that any substantial inconvenience was caused to any persons other than persons associated with the industrial dispute. By contrast, the crowds that were procured by the CFMEU to attend in the vicinity of the Emporium site caused major disruption to members of the public going about their ordinary business in the very heart of the central business district. On three of the four days, the crowd at the Emporium site was 1,000 strong or more. The judgment in Williams does not indicate that the subject matter of the case attracted media coverage that was in any way comparable to the media coverage that attended the events at the Emporium site. Further, Williams was not a contempt case.

143 Turning to the involvement of the police, I acknowledge that police attendance at picket lines and similar events is not in itself unusual. And it is true that there was police involvement in the events near the West Gate Bridge which were the subject of the Williams case. However, the CFMEU is wrong in its submission that Jessup J did not regard the perceived need for a police presence in the West Gate dispute as an aggravating factor. Jessup J did treat this as a relevant factor in considering penalty.[233] In the present case, the attendance of the police, especially on 28 August 2012 when they attended in large numbers and were involved in a widely publicised confrontation with the assembled workers, and on 31 August 2012 when they again attended in large numbers and took elaborate protective measures, is relevant for present purposes if for no other reason than that it was bound to, and did, elevate greatly the profile of the CFMEU's conduct in the public eye. On the other hand, it was very properly drawn to my attention by the Attorney-General that in Hinch v Attorney-General[234] Young CJ found that, when sentencing for a contempt committed by a public broadcaster which caused a trial to be aborted, it was not relevant to consider the possible additional expense to the State. The Attorney-General also very fairly pointed out that, in Bovis Lend Lease Pty Ltd v CFMEU (No 2),[235] Tracey J observed that "a penalty imposed to punish contempt is not designed to compensate for any loss suffered by those affected by the contempt". In the light of those authorities, I do not have regard to the cost to the State of the involvement of the police (or the cost to Grocon of any delays or disruptions caused by the CFMEU's conduct). On the other hand, I accept the Attorney-General's submission that a contempt involving a public disturbance that necessitates - or as I would put it, makes appropriate the deployment of considerable resources to maintain public order should be considered more serious than a contempt that does not. In my view, that is this case. In my reasons on liability I dealt with the industrial context and the history of events up to and including 27 August 2012.[236] Against that background, I was satisfied beyond reasonable doubt that there was some plan in place, to which the police were a party, to assist the Grocon workers to cross over to the Emporium site on the morning of 28 August 2012.[237] A further, major police operation took place on 31 August 2012. In all the circumstances, I am satisfied beyond reasonable doubt that the relevant contemptuous behaviour of the CFMEU made appropriate the deployment of substantial police resources at the Emporium site during the whole of the relevant period, and especially on 28 and 31 August 2012.

144 I agree with the moving parties that the attendance of so many senior officials of the CFMEU at the Emporium site was unusual and was a further demonstration of the depth of the CFMEU's determination to maintain its stance. That stance necessarily involved breaching the orders of this Court. It is no answer for the CFMEU to say that it was, at the same time, seeking to make what it regarded as an important point in its industrial dispute with Grocon. The end does not justify the means. The means involved flagrant, prolonged, deliberate defiance of the orders of this Court.

145 As I have said, in my view, the various contemporaneous public statements made by representatives of the CFMEU on which the moving parties rely - all of which are referred to in my judgment on liability did not expressly or impliedly refer to the orders of the Supreme Court. Further, putting aside the two insignificant instances to which I have already referred, there is no evidence before me that the public was told by the media or by anyone else, or that the public or any particular section of the public believed, that the CFMEU's conduct in relation to the Emporium site involved breaches of orders of this Court or was in contempt of this Court. On the other hand, the Grocon plaintiffs had actually commenced contempt proceedings against the CFMEU as early as 24 August 2012 and had filed and served a relevantly amended statement of charge as early as 30 August 2012. The Grocon plaintiffs were pursuing their contempt proceedings vigorously. It was likely that the liability or otherwise of the CFMEU for the alleged contempts would in due course be either admitted or judicially established. Hence, the public was likely to discover in due course that the (very high profile) conduct of the CFMEU was in contempt of court. Moreover, as indicated above, the CFMEU must be taken to have been aware at all times that it was acting in contempt of the restraining orders. Yet the CFMEU persisted. Further, its contemporaneous public statements expressed very strong determination to persist. In those senses, the public stance and the public statements of the CFMEU at the time amounted to public defiance of the orders of the Supreme Court.

146 Although the CFMEU submitted that contempts constituted by disobedience of orders committed in the industrial context are not normally dealt with as criminal in nature, the CFMEU did not point to any reasoning that had been adopted in any decided cases to justify any such practice, nor did the CFMEU advance any argument of legal policy or otherwise to suggest that players in the industrial context (whether employers, employer organisations, unions or workers) should enjoy some kind of special immunity or tolerance in respect of proceedings for contempt.[238] As mentioned above, there are apparently very few examples of proceedings which have gone to judgment in which a finding of even civil contempt has been made against a union or other participant in the industrial field. It may be that moving parties have rarely, if ever, sought a finding of deliberate or contumacious contempt against such a party. However, as indicated above, there is a real criminal "flavour", at least, in the respective judgments in the Mudginberri matter. It is noteworthy that in Mudginberri, the High Court referred[239] with apparent approval to the judgment of the Supreme Court of Canada in Tony Poje v Attorney-General (British Columbia).[240] In that case, it was held that the defendant picketers were in criminal contempt of court for defying an order to cease their picketing of a certain vessel. It was held that the large numbers of men involved and the public nature of the defiance (in that it was carried out in public and after the sheriff of the county had read out to the picketers the material parts of the order of the court), rendered the conduct in question contempt of court criminal in character. Further, I note that in Bovis Lend Lease (No 2),[241] although he did not make an express finding of contumacy or of criminal contempt, Tracey J declared in his order that the CFMEU was "guilty" of contempt. His Honour did likewise in Alfred v CFMEU (No 2).[242] In his reasons in Alfred, Tracey J noted that the parties agreed that the CFMEU had two relevant prior "convictions" for contempt,[243] namely in BHP Steel (AIS) Pty Ltd v CFMEU[244] and in Bovis itself. This language, too, has a criminal flavour. Having regard to these matters, I cannot see any good reason for treating players in the industrial field differently from others with respect to the application of the principles concerning the circumstances in which a breach of an order or undertaking should be classified as criminal.

147 For these reasons, I am satisfied beyond reasonable doubt that each of the four Emporium Site contempts involved a seriously contumacious breach of the orders of this Court. Each should be classified as criminal.

148 Turning to the McNab site contempt, it is true that it involved fewer persons and that it occurred in a less prominent place. However, a group of 40 or so persons is still a significant group. They were patrolling an intersection of public roads. They targeted Grocon deliveries. Two senior officials of the Union were present and active at the location. One of them, Setka, was a very senior official. The truck was stopped twice. The fact that it returned on a second occasion shows conclusively that, whatever may have been in the mind of the first driver, and whether or not the second driver was the same person, the party responsible for the truck had not been persuaded by whatever was said by the picketers on the first occasion as to the rightness of their cause. That party made a further move to deliver the cargo of reinforced steel, but was stopped in the process. Whether or not the picketers were more successful in their persuasive efforts on the second occasion, they would not have been able to succeed in their desire to turn the supplier away from Grocon's McNab site had they not stopped the progress of the truck on both occasions. The injunctions were in place for the protection of Grocon, not for the protection of Grocon's suppliers. The actions of the CFMEU in causing the truck to be stopped on each occasion undermined the protection to which the Grocon plaintiffs were entitled under the order, and set the process of this Court at nought.[245] This further breach by the CFMEU of the orders of the Court was a serious one.

149 Moreover, for much the same reasons as applied to the Emporium Site contempts, I am satisfied beyond reasonable doubt that the conduct of the CFMEU involved deliberate defiance of the relevant order of this Court. That order had been made by the Chief Justice on 21 August 2012, only about two weeks previously. It had been made in the self-same proceeding as the other relevant orders, namely this proceeding. It had been brought to the notice of the CFMEU in the same way as the other relevant orders. Like them, it contained a penal notice. To the knowledge of the CFMEU, the Grocon plaintiffs had been in court seeking to enforce the restraining orders almost constantly during late August 2012. The CFMEU was studiously ignoring the processes of this Court. This particular contempt occurred on the very morning of the last day of the initial hearing of the first contempt application. The public statements being made on behalf of the CFMEU at the time showed beyond doubt that the dispute with Grocon was still intense. It is plain that the CFMEU preferred to seek to advance its position in that dispute rather than obey the order of the Chief Justice of this Court.

150 The McNab site contempt involved a seriously contumacious breach of the Court's order. Like the Emporium Site contempts, it should be classified as criminal.

The Cambar/Hollow Core contempts: civil or criminal

151 As indicated above, only the Attorney-General submits that the Cambar/Hollow Core contempts were criminal in nature. The Grocon plaintiffs expressly refrain from making any such submission. I am not satisfied, beyond reasonable doubt, that the Cambar/Hollow Core contempts should be classified as criminal.

152 Set out above, under the heading "Further history of the contempt applications", is an account of the four charges that were brought initially by the Grocon plaintiffs in the third contempt application, together with the supporting particulars. However, it is important to recognise that the Grocon plaintiffs withdrew the charges of "preventing" the supply of the goods in question (charges 1 and 3). The remaining charges were amended so as to allege hindering only. More significantly, the "plea" of the CFMEU, accepted by the moving parties and by the Court, was to charges to the effect that during the period from approximately 10.40 am to 2.00 pm on 26 April 2013, contrary to my order of 4 March 2013, the CFMEU had, by failing to prevent the continuation of physically obstructive conduct on the part of certain of its officials, hindered the supply of goods to the first and third plaintiffs at relevant building sites by suppliers. Although the evidence before me includes evidence as to what was said and done by CFMEU organisers at the premises of the two suppliers respectively during the early morning of 26 April 2013, the accepted basis on which the case proceeds to the penalty stage does not include any finding that the CFMEU (by its directing mind) was contemporaneously aware of the presence or conduct of the organisers at the locations in question, much less that the CFMEU organised or caused their activities or their presence at those locations. Rather, the accepted case is no more than that the CFMEU was informed at approximately 10.40 am on 26 April 2013, in general terms, that CFMEU organisers had been blocking the exit of vehicles loaded with supplies destined for the Grocon building sites. The basis of the accepted contempt is that the CFMEU (by its senior officials, Setka and Spernovasilis) came under a duty at approximately 10.40 am, once they had been informed of the situation, to take steps forthwith to stop the obstructive conduct. The breaches were constituted by omissions, rather than positive acts.

153 It is desirable to refer to the relevant facts in more detail, while bearing in mind the limits of the case as ultimately advanced and accepted.

154 Ultimately, the only evidence that was before the Court in relation to the liability phase of this third contempt application (and it remains the only evidence before the Court in relation to the penalty hearing) was the evidence listed at paragraph 4 of the Grocon plaintiffs' submissions on penalty and costs filed on 25 September 2013. Also supplied to the Court were an agreed typed transcript of exhibit A 1 (a running sheet prepared by Acting Senior Sergeant Waters on 26 April 2013) together with a table of the plaintiffs' evidence which identified redactions, amendments and those paragraphs in the affidavit material that were admitted for a non-hearsay purpose.[246] I will deal with the facts by reference principally to the Grocon plaintiffs' submissions.

155 It is convenient to deal with the contempt at the Hollow Core site first. This became the subject of amended charge 4. Hollow Core supplies, manufactures and delivers pre-cast concrete components, which include panels, columns, beams, planks and walls. Peter Healey is the managing director of Hollow Core. Hollow Core's main office and factory is located at 12-14 Maria Street, Laverton North. Despatch of pre-cast concrete supplies from Hollow Core's site is by truck through a main gate on Maria Street. Hollow Core was contracted by Grocon Constructors (Victoria) Pty Ltd to provide pre-cast concrete goods including panels, planks, beams, columns and walls to Grocon's building site located at 150 Collins Street, Melbourne. Hollow Core was also contracted by Grocon Constructors (Vic) Pty Ltd to supply pre-cast shell beams to the Emporium site.

156 On 26 April 2013, Grocon Constructors (Victoria) Pty Ltd required Hollow Core to supply pre-cast concrete goods to 150 Collins Street. The goods were to be delivered in 7 loads using three vehicles on rotation. Hollow Core subcontracted a transport company to attend Hollow Core's site located at 12 to 14 Maria Street, Laverton North. The first delivery was scheduled for 7.00 am.

157 At approximately 7.00 am on 26 April 2013, Healey arrived at Hollow Core's site. Healey observed Mark Travers (CFMEU organiser) and Peter Clarke (CFMEU safety officer) standing near the main gate. Mark Travers is mentioned as one of the CFMEU personnel to whom, in accordance with my order of 4 March 2013, a direction was given by the National Secretary of the CFMEU not to hinder the supply or possible supply of goods or services by any person to any of the Grocon plaintiffs. (Setka was another such a person and so was Spernovasilis.) Healey directed that a semi-trailer be loaded with goods ordered by Grocon to be delivered to the 150 Collins Street site commencing at 7.00 am. The goods were loaded onto a semi-trailer which was attached to a white prime mover (the truck). Once loaded, the truck attempted to leave through the main gate but was prevented from doing so because Travers and Clarke moved a vehicle they had with them across the driveway. The vehicle used by Travers and Clarke was registered to the CFMEU.

158 Upon the truck being prevented from leaving the Hollow Core site, Healey spoke to Travers and Clarke about their conduct. Healey asked Travers to move the vehicle but Travers refused. Neither Clarke nor Travers would move the vehicle and the truck was thereby prevented from passing through the main gate. Between 7.00 am and approximately 8.00 am, Healey asked Travers on three occasions to move the vehicle parked at the main gate but Travers refused on each occasion.

159 At approximately 8.00 am, Healey told Travers and Clarke that if they were not going to move their car he would call the police. Healey then called the police and at approximately 8.30 am, the first police car and officers arrived. At approximately 8.35 am, Mr Brian McAdam (McAdam), Operations Manager at Grocon (who is referred to in my reasons on liability), arrived at the Hollow Core site. He remained there for approximately one hour and took various photographs of the CFMEU vehicle, Travers and Clarke and the truck positioned at the main gate exit. McAdam asked Travers to move the car but was told "No". At approximately 8.45 am to 9.00 am, McAdam observed Travers get into the CFMEU car and reposition it so that it was blocking both the entry and exit lanes of the driveway. At about 9.05 am McAdam spoke to one of the police officers present and said that the "blockade" was in contravention of Court orders that prevented interference by the CFMEU. McAdam also mentioned to the police officer that there was similar conduct occurring in Port Melbourne at the same time. At approximately 9.20 am, McAdam left the Hollow Core site.

160 At approximately 10.40 am, following her conversation with McAdam, Acting Senior Sergeant Waters (Waters) telephoned Spernovasilis, who was then the Divisional Vice-President of the CFMEU Construction and General Division and Branch Assistant Secretary of the CFMEU Construction and General Division Victoria-Tasmania Divisional Branch. It is an agreed fact that, from 10.40 am, the CFMEU was fixed with knowledge in general terms of the prior conduct of its organisers (at both the Hollow Core and Cambar sites) and that it failed to take any steps to prevent the continuation of that conduct in circumstances where it was required (under the order of the Court) to do so.

161 At about 12 noon, a semi-trailer entered Hollow Core's site after the CFMEU vehicle was moved to allow its entry. Healey took the opportunity and directed the truck with goods destined for Grocon to depart. Clarke and Travers moved on foot and placed themselves in front of the truck and as a result the truck was unable to leave the site.

162 At about 1.00 pm, Waters spoke to Setka, who was then the Divisional Senior Vice-President of the CFMEU Construction and General Division and Branch Secretary of the CFMEU Construction and General Division Victoria-Tasmania Divisional Branch, and was told by Setka that CFMEU organisers would be there for approximately one more hour and would leave at 1400 hours.

163 At approximately 1.30 pm, Travers told Healey that they would be leaving "in around 30 minutes".

164 At 2.00 pm Healey observed Travers and Clarke depart Hollow Core's site in the CFMEU vehicle. Soon after that, the truck left Hollow Core's site to make its delivery to the 150 Collins Street site. The second delivery due on 26 April 2013 was made the following day.

165 Cambar was contracted by Grocon Constructors (Vic) Pty Ltd to provide pre-cast wall panels and pre-cast columns to the Emporium site. Deliveries of goods emanated from Cambar's site located at 88 Turner Street, Port Melbourne.

166 The General Manager of Cambar was Nick Mardes (Mardes). The Transport Manager was Frank Ferrara (Ferrara).

167 On 26 April 2013, Grocon Constructors (Vic) Pty Ltd required Cambar to deliver various pre-cast concrete panels and pre-cast columns to the Emporium site. The first of the deliveries were scheduled to arrive at the Emporium site at 10.00 am.

168 At approximately 9.55 am McAdam arrived at the Cambar site and he took various photographs. McAdam observed two Ford Territories parked in front of two trailers loaded with goods that were to be delivered to Grocon that morning. The vehicles were registered to the CFMEU and accompanied by Adam Hall (Hall), a CFMEU organiser and another individual (whose identity is not known). They were joined later in the morning by John Duggan, a CFMEU organiser, in another car. The positioning of the CFMEU vehicles was such that Cambar's prime movers were unable to reverse and connect to the trailers.

169 At approximately 10.30 am McAdam approached the vehicles and inquired of their occupants what was going on. He obtained no satisfactory response. Between approximately 10.05 am and 10.30 am McAdam obtained signed statements from Mardes and Ferrara about the morning's events.

170 It is agreed that the CFMEU's liability for the conduct at the Cambar site commenced at 10.40 am on 26 April 2013 (which is when Acting Senior Sergeant Waters first telephoned Spernovasilis from the Hollow Core site). The CFMEU accepts that from 10.40 am it was fixed with knowledge in general terms of the prior conduct of the organisers; that steps should have been taken to prevent the continuation of that conduct; that no such steps were taken; and that the conduct continued until approximately 2.00 pm at both sites.

171 As indicated above, the Grocon plaintiffs do not contend that the Cambar/Hollow Core contempts were criminal in nature. They do, for the purposes of penalty generally, submit, again, that the CFMEU is a large, representative organisation.[247] They point out that senior officials of the CFMEU, Setka (Branch Secretary) and Spernovasilis (Branch Assistant-Secretary) did not take any steps on behalf of the CFMEU to prevent the continuation of the relevant conduct when they were under a duty to do so. The Grocon plaintiffs describe the circumstances of the contempt as a "stunningly brazen breach" of the Court's orders. They submit that the context for the behaviour is the industrial context referred to in my reasons on liability at [99]-[107] wherein I found that there was a "bitter industrial dispute" between Grocon and the CFMEU. In an affidavit dated 4 July 2013 filed in this third contempt application, Mr McAdam deposed, at paragraph 42, that the dispute appeared to be continuing and remained unresolved. At the penalty hearing in November 2013, the CFMEU belatedly sought to object to the admission of paragraph 42 of McAdam's affidavit. I rejected that application, noting that the paragraph had been part of the material which, at the liability phase, the CFMEU had agreed should form part of the material before the Court. However, the comment of McAdam is not sufficient, in my opinion, to establish to the requisite standard that the particular omissions the subject of the third contempt application occurred as part of the industrial dispute which I described in my reasons on liability in relation to the first and second contempt applications. There is no other evidence tending to show such a connection. On the other hand, the CFMEU does not dispute that when it decided to do nothing to stop the continuation of the obstructive conduct at Hollow Core and Cambar, it made that decision as a registered organisation of employees acting as such. Further, it concedes that the conduct was directed at Grocon.

172 The result for Grocon of the CFMEU's contempt was that the timely supply of goods to its construction sites at 150 Collins Street and the Emporium Site was hindered and delayed in breach of an order of the Court that the relevant Grocon plaintiffs had successfully obtained. The Grocon plaintiffs submit that the businesses at Cambar and Hollow Core had to suffer the indignity and intrusion of being hindered from operating their business in a lawful manner. The CFMEU says that there is no evidence that Cambar and Hollow Core suffered "indignity" or "intrusion", but in my view the evidence that I have detailed above plainly establish indignity and intrusion.

173 The Grocon plaintiffs submit it is inevitable that the CFMEU's defiance of the orders of this Court, being repeated so soon after its contemptuous conduct in August/September 2012, undermined public confidence in the rule of law. They submit that the CFMEU's behaviour was a serious interference with the administration of justice. Nevertheless, I repeat that the Grocon plaintiffs do not contend that these contempts were criminal in nature.

174 On the other hand, the Attorney-General does submit that the Cambar/Hollow Core contempts were "contumacious" and therefore criminal. The Attorney-General, like the Grocon plaintiffs, points out, yet again, that the contempt was committed by a large, representative body; and that senior officials of that body were made aware of the breach of the Court's orders, yet made a conscious decision not to act to stop the conduct. According to the Attorney-General, the CFMEU's conduct was a display of "public defiance". The Attorney-General submits that the evidence reveals a coordinated campaign to prevent the supply of concrete to Grocon, carried out in public view, at various subcontractors' sites, on 26 April 2013.

175 That latter aspect of the Attorney-General's submission cannot stand with the agreed and accepted basis of the findings on the third contempt application. There is no basis now for the submission that there was a "coordinated campaign" on the part of the CFMEU to prevent the supply of concrete to Grocon. The Attorney-General did not seek to interfere with the way in which the case was ultimately presented on liability. It is far too late for the Attorney-General to make allegations that conflict with the previously agreed and accepted basis of the CFMEU's "plea". The finding is of a failure to stop conduct of certain organisers. As mentioned above, it was contempt by omission, rather than by positive act.

176 It is true that the relevant senior officials of the CFMEU made a conscious decision not to act to stop the conduct. On the other hand, as the CFMEU submits, the duration of the contempt is a period of just over three hours; the defendant did put a stop to the behaviour at the end of that period; and the effect of the defendant's behaviour was to delay, rather than prevent, delivery. As indicated above, the conduct cannot be sufficiently tied to the "bitter industrial dispute" referred to in my reasons on liability. Hence, this contempt cannot be treated as part of a prolonged period of defiance. It occurred some eight months after the last of the breaches covered by the first and second contempt applications. There was no media focus. There were no public statements. The involvement of police was much less than at the Emporium site eight months earlier. There was no physical scuffle or jostling. There really is a stark contrast between the Cambar/Hollow Core contempts and the other contempts. They were committed before the publication of my reasons on liability in the first and second contempt applications. Despite all of these features, it might still be said that there was a measure of deliberate defiance or contumacy in the CFMEU's contemptuous failure to put a stop to the organisers' conduct, but I cannot be satisfied beyond reasonable doubt that the level or measure of contumacy, and the overall seriousness of the contempts, was such as to warrant a classification of the contempts as criminal.

177 My conclusion on this point would be the same in any event, but I think it is further confirmed by the fact that the parties most directly affected by the omissions complained of, namely the Grocon plaintiffs, do not suggest that the contempts were criminal. That submission contrasts with the Grocon plaintiffs' submission in relation to the first and second contempts. It is obviously a considered submission. It is made notwithstanding that the Grocon plaintiffs otherwise press the third contempt application and contend that it should be heavily penalised.

178 For all of these reasons, I decline to classify the Cambar/Hollow Core contempts as criminal.

Application of the penalty principles to the Emporium and McNab contempts

179 It will be recalled that under the heading "Penalising the contempts - general principles" I referred to general common law sentencing principles (particularly those upon which the CFMEU rely) and to the list of "relevant considerations" identified by Tracey J in Alfred which have been accepted as applicable to the determination of penalty in cases of the present kind.

180 In dealing with the classification of the relevant contempts, I have largely completed my consideration of the first four matters listed by Tracey J, namely the nature and circumstances of the contempt, the effect of the contempt on the administration of justice, the contemnor's culpability, and the need to deter the contemnor and others from repeating the contempt. The remaining considerations are the absence or presence of a prior conviction for contempt, the contemnor's financial means, and whether the contemnor has exhibited general contrition and made a full and ample apology. I will turn to those three matters in a moment. Another matter that will call for further specific mention is the size of previous fines imposed for contempt, in the context of the debate between the parties relating to the principles of proportionality and consistency.

181 As indicated above, strictly speaking, it may be that the CFMEU does not have any prior "convictions" for contempt.[248] Certainly, there have been findings of contempt made against it, and, as I have mentioned, Tracey J in Alfred referred to two of them as convictions.

182 The Grocon plaintiffs invite me to consider those two matters (BHP and Bovis) and Alfred itself, together with Director of the Fair Work Building Industry Inspectorate v CFMEU,[249] as relevant prior convictions or findings of contempt on the part of the CFMEU. Contrary to the submission of the Attorney-General (to which I will come), the Grocon plaintiffs do not suggest that any other matters should be taken into account against the CFMEU as being in the nature of prior convictions or relevant prior adverse findings. On the other hand, the Grocon plaintiffs submit that because of the "unprecedented nature" of the Emporium site contempt in particular, the quantum of penalties previously imposed by courts upon the CFMEU is of no useful guidance, save to say that the previous penalties have been ineffective in deterring the CFMEU.

183 The BHP case related to conduct in the year 2000. It involved a breach of Federal Court orders whereby the CFMEU failed to immediately cease strike action (that is, the authorisation of members to stop performing work at BHP's mines in New South Wales). The action was a stoppage of work of one day's duration. The Grocon plaintiffs submit, correctly in my opinion, that those facts are very different from the present matter, and far less serious. As the Grocon plaintiffs submit, the Full Court of the Federal Court overturned a decision at first instance to impose a fine of $120,000 and reduced the fine to $50,000.[250] One of the considerations deemed relevant by the Full Court was that the trial judge had made an order that the CFMEU pay the costs of BHP on an indemnity basis. The relevant breach involved a CFMEU official acting in such a way as to ensure that strike action would go ahead despite a court order to the contrary. The action took place over a short period of time.

184 In Bovis,[251] the CFMEU was found "guilty" of contempt in relation to incidents on 19 and 23 February 2009 respectively when it prevented vehicles from entering the Royal Children's Hospital building site in Parkville, Victoria. The Grocon plaintiffs make the point that, although in those two specific incidents vehicles were prevented from entering the site, work was otherwise able to continue. They further point out that the number of men standing in the driveway on the day of the incident was up to approximately eight. The largest crowd was approximately 20 people on 22 February 2009, but that was not a day on which a contempt was found to have been committed. A fine of $75,000 was imposed and indemnity costs were ordered by Tracey J.

185 In Alfred,[252] the Court imposed a fine of $150,000 and ordered that the CFMEU pay Inspector Alfred's costs on an indemnity basis agreed at $150,000. The relevant conduct involved a blockade of a site in Epping at which the new wholesale fruit and vegetable market was being constructed. Contrary to the Court's orders, during the period from 21 May to 28 May 2010, the CFMEU did not refrain from preventing or hindering the access of persons and vehicles to the site. The CFMEU pleaded guilty to this charge. The parties had jointly submitted to Tracey J that an appropriate fine for the contempt would fall within the range of $100,000 to $175,000. The figure of $150,000 selected by his Honour fell within that range. Since the judgment in Barbaro[253] and, at least for this Court, since the decision in ASIC v Ingleby,[254] there must be a real question about the weight to be given to the quantum of penalty imposed in such circumstances in an earlier case. Further, I note that in Alfred the Court also imposed a pecuniary penalty of $100,000 on the CFMEU in respect of contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) which arose out of the same course of conduct as gave rise to the charges of contempt of court.[255]

186 In FWBI Inspectorate v CFMEU,[256] the finding of contempt was made on 4 September 2012, namely just after the Emporium site conduct and just one day before the McNab site conduct. To the extent that the decision was given after the Emporium site conduct, it does not count as a prior "conviction". Nevertheless, the Court can have regard to it in a limited sense.[257] The relevant conduct had occurred on 2 February 2011 and 10 June 2011 in breach of orders that had been made on 23 June 2009. The contempt was not knowing or wilful. Still, the Court regarded the breaches as a serious matter and accepted that the penalty for each contempt, as agreed to by the CFMEU ($50,000 in respect of the conduct on 2 February 2011 and $50,000 in respect of the conduct on 10 June 2011) was appropriate in all the circumstances. I repeat that, as a result of Barbaro and Ingleby, this Court must be cautious in having regard to the outcome in FWBI Inspectorate v CFMEU. In any event, as the Grocon plaintiffs point out, the circumstances of that case were very different to those of the present matter. The case involved specific conduct by one of the CFMEU's officials (Joseph McDonald), for which the CFMEU was liable, of engaging and being involved in strike action on 2 February 2011 and 10 June 2011 at the Queens Riverside Project in Western Australia. Essentially, Mr McDonald had directed that strike action take place on those specific days. Some associated picketing was involved but only about 20 persons were involved. I accept that that matter was on a lesser scale than the present matter.

187 The Attorney-General appended to his original written submissions on penalty what he described as a table summarising prior findings by courts of contempts (or analogous conduct) by: (i) the CFMEU and (ii) those officials of the CFMEU named in the reasons on liability as persons involved in the present contraventions. However, in the very next paragraph of the submissions, the Attorney-General said:

As a general principle, when determining a penalty for contempt, the relevant history of the offender includes, and is limited to, other findings of contempt or similar conduct.

For that proposition, the Attorney-General cited R v Vasiliou (No 2),[258] R v Giscombe[259] and Scott v Evia.[260] I have had particular regard to the two Victorian decisions. Those decisions indicate that the Court should take into account only other findings of contempt and should treat as entirely irrelevant the existence of prior convictions of any other kind. That approach accords with the submissions of the Grocon plaintiffs. I have found no Australian contempt case which permits a different view to be taken. It may have been different if the matter before this Court had involved alleged breaches of industrial legislation.[261] I do not accept that the strong statements (to the effect just indicated) contained in the Victorian cases can be got over in the way indicated in the Attorney-General's written submissions,[262] namely by saying that the conduct described in those earlier matters "may be relied upon as a general circumstance that informs the importance of specific deterrence in this case". Accordingly, I propose to have no regard to any of the matters set out in Appendix 3 to the Attorney-General's submissions except the four contempt cases upon which the Grocon plaintiffs also rely.

188 I turn now to the CFMEU's financial means. As mentioned several times above, the CFMEU accepts that it is a large, representative organisation, as it was described by Tamberlin and Goldberg JJ in the BHP case.[263] It is also common ground that the CFMEU has substantial financial means. The most up to date agreed figures concerning the CFMEU's financial resources are set out in the written reply submissions of the Grocon plaintiffs filed in the first and second contempt applications by reference to an attached financial report for the year ended 31 December 2012. That report shows that the CFMEU Victorian/Tasmanian Branch provisioned $2 million for legal settlements, a figure which may be compared with $85,000 for the previous financial year. The report also shows that the cash at bank and short term deposits of the Branch amount to $12,382,559. The Branch's cash flow from operations is shown at $7,160,522. Its net assets are $51,931,494. Both the Grocon plaintiffs and the Attorney-General submit that the CFMEU can easily afford to pay very large fines.

189 In response, the CFMEU acknowledges that it has no relevant inability to pay a fine. However, it submits that because it is a representative body, a large fine will ultimately be paid for by its membership, who are working people, citing R v Wattle Gully Gold Mines N/L.[264] The CFMEU further submits[265] that evidence that it has adequate resources to pay a substantial penalty and actual indemnity costs is not relevant to penalty unless it is claiming financial hardship in mitigation of penalty, which it is not. It submits that a rich person does not pay a higher penalty than someone of moderate means simply by dint of having more money to spare.

190 As to the first of the CFMEU's points in this regard, I note that the same point was addressed to Tracey J in Bovis.[266] I agree in substance with the response of Tracey J to the point.[267] In particular, I agree with Tracey J that the prospect that the fine will ultimately impact on the membership of the union is of little weight where, as in this case, the conduct is not that of rogue members or officials, but rather is that of elected officials who were acting in the course of their duties. As his Honour said, 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.

191 As to the CFMEU's second response in relation to its financial means, I consider that its response is directly contrary to the well-established principle that the contemnor's means are relevant.[268] The CFMEU is not an individual person. As just discussed, it is a body that represents many thousands of people. It is a commonplace of legislation that maximum penalties, both criminal and civil, differ greatly as between individuals and corporations. Very frequently, if a large corporation and an individual are both found guilty of related offences, or are both found to be liable under civil penalty provisions in respect of related conduct, the corporation will be ordered to pay a far greater pecuniary penalty than the individual.

192 Accordingly, I do propose to take into account the financial means of the CFMEU.

193 The final "consideration" in the standard list is whether the contemnor has exhibited general contrition and made a full and ample apology. In the first and second contempt applications, the CFMEU initially ignored the Court. Later, it contested its liability. It has made no apology. It does not claim remorse.

194 On the other hand, I accept that the fact that the Union has offered no apology cannot be regarded as an aggravating feature of the contempt. In BHP Steel (AIS) Pty Ltd v CFMEU,[269] Kiefel J said:

Whilst the lack of an apology is not an aggravating circumstance, such as might increase the penalty, the making of an apology can operate to reduce a penalty, at least where it can be seen to render it unlikely that the conduct will be repeated in the future. The respondent has elected not to take that course.

195 I should say something more about the factor of deterrence, both general and specific. It was common ground that both general and specific deterrence were relevant matters in this case. Indeed, the moving parties put great emphasis on deterrence. As to general deterrence, they rightly pointed out that it would be destructive of the rule of law if the idea spread that compliance with court orders was optional. As to the CFMEU itself, they pointed not only to the prior findings against the union of contempt to which I have referred, but also to the abovementioned comment of Mr Setka made to a journalist shortly after the handing down of my reasons on liability on 24 May 2013 and published in the Herald Sun newspaper. Setka was reported as stating to the media that "It's not the first time or the last time a union is found guilty of contempt." He said that the members of the CFMEU "want [it] to maintain a militant union" and that "[u]nfortunately, the price of that is that we will get fines".

196 The Attorney-General submits, and it is obviously true, that the imposition of a penalty for contempt of court should not be viewed as simply an anticipated cost of industrial action. As he further submits, few things could be more destructive to the authority of the Court and to the rule of law than the idea that fines or similar punishment are akin to a tax that, once budgeted for, enable the use of unlawful conduct to achieve industrial outcomes.[270]

197 In Pennicott Wilderness Journeys Pty Ltd v Tasmanian Cruises and Charters Pty Ltd,[271] in handing down penalties for certain contempts of court committed by two individuals, Marshall J said:

The financial penalties should be sufficient to give due weight to specific and general deterrence and to reinforce the concept that breach of court orders should not be seen as part of the price of doing business.

Likewise, in Singtel Optus Pty Ltd v ACCC,[272] a case relating to the assessment of pecuniary penalties for false advertising under the Trade Practices Act 1974 (Cth), Keane CJ, Finn and Gilmour JJ said:

Optus cannot be regarded as a "first offender". It failed to observe the requirements of the Act, and not for the first time. The absence of a satisfactory explanation for the contraventions and the evident laxity in its internal compliance program mentioned by the primary judge means that Optus has given the court no reason to be confident that, in the absence of a very substantial penalty, it will not regard as acceptable the risk of a fine for contravention. The court must fashion a penalty which makes it clear to Optus, and to the market, that the cost of courting a risk of contravention of the Act cannot be regarded as acceptable cost of doing business.

The Full Court, notwithstanding that it allowed Optus' appeal and set aside the penalty imposed below, itself imposed a total penalty of $3,610,000 in relation to a total of eleven advertisements that were published in breach of the Act. The principles set out in Singtel were recently applied by Marshall J in Director of Consumer Affairs Victoria v Dimmeys Stores Pty Ltd.[273] There, Marshall J imposed a total penalty of $3,000,000 on Dimmeys Stores Pty Ltd for importing and selling consumer goods that failed to comply with Australian product safety standards.

198 It is true that the Trade Practices Act 1974 prescribed very high monetary penalties for breaches. In contempt, of course, there are no corresponding provisions. On the other hand, penalties for contempt are, in a sense, at large.

199 Unsurprisingly, the CFMEU has placed significant emphasis on the comparatively modest amounts that were awarded against it in the four cases upon which the moving parties rely as (in effect) prior convictions of the CFMEU for contempt. However, I have already indicated reasons why this Court should only pay limited regard to those cases. I do note, as the CFMEU urges me to, that in Alfred[274] the CFMEU had been found guilty of contempt in respect of what was described as a full blockade of the Melbourne Market Relocation Project site for a period that stretched between 21 May 2010 and 28 May 2010. The fine imposed for contempt was "only" $150,000. That was, however, additional to an order that the CFMEU pay $150,000 by way of indemnity costs of the applicant's motion for contempt. It was also additional to a fine of $100,000 in respect of contraventions of the BCII Act, as mentioned above. But the most important distinguishing feature of that case is that the CFMEU had pleaded guilty and the parties had jointly submitted an appropriate penalty range of $100,000-$175,000. In the present case, the CFMEU did not plead guilty and there is certainly no agreement about the range. Nor could there be, having regard to Barbaro[275] and Ingleby.[276]

200 In my opinion, the four prior CFMEU contempt cases do not establish a tariff or range for the purposes of the present case. Nor do any other cases. I do not ignore the amounts determined in the four specified cases, but I do not regard myself as being bound to any range as a result of those cases or otherwise.

201 On the other hand, the pattern of repeated defiance of court orders by the CFMEU revealed by those four cases is very troubling. Specific deterrence must loom large in this case. I accept that a respondent is not to be punished a second time for prior conduct.[277] And, as the CFMEU submitted, the concept of deterrence cannot be permitted to hijack the process. I accept also that the objective seriousness of the contempt remains the necessary central focus.[278] However, as indicated above, I regard these contempts as exceptionally serious. So much so that they warrant explicit classification as criminal contempts, perhaps for the first time in the Australian industrial context. I have already explained why I consider these contempts to be so serious. In short, they were highly contumacious. They were also highly visible and highly memorable. The Court must visit the defiance of the CFMEU with a penalty which will not only adequately respond to the scale of the defiance but also act as a general and specific deterrent. No fines of the level previously imposed could do that.

202 I cannot put it better than did Merkel J in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union:[279]

The rule of law in a democratic society does not permit any member of that society, no matter how powerful, to pick and choose the laws or court orders that are to be observed and those that are not. Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes (Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia[280]), it also requires that parties comply with the orders made by the courts in determining those disputes.

If the individual respondents believed that the orders of Whitlam J were wrongly made, then it was open to them to appeal, or apply for leave to appeal, against those orders. Instead, they breached them. The fact that the breaches are by union leaders holding important offices in a federation of national trade unions makes them more, rather than less, serious: see Gallagher v Durack.[281]

203 I can see absolutely no reason why my findings that the relevant contempts represent criminal contempts should not be translated into formal criminal convictions. I will order accordingly.

204 So far as costs are concerned, the CFMEU accepts that it must pay the costs of the Grocon plaintiffs of the first and second contempt applications, as from the filing and service of the amended statement of charge on 30 August 2012.

205 The Grocon plaintiffs submit that the costs should be awarded on an indemnity basis, such that every dollar they have spent will be required to be reimbursed by the CFMEU. For that purpose, the Grocon plaintiffs seek to be "liberated" from the Supreme Court scale, which would otherwise apply even to the assessment of indemnity costs.

206 The CFMEU submits that costs should be taxed on the ordinary basis, namely, up until 1 April 2013, on the party-party basis and thereafter on the standard basis.

207 I note that as at 21 June 2013, Grocon estimated that its costs were approximately $1.3 million.

208 In considering the question of costs, I have taken into account the entire history of the three contempt applications.

209 Like Dixon J in Deputy Commissioner of Taxation v Gashi (No 3),[282] I consider that the CFMEU should pay the costs of the Grocon plaintiffs on an indemnity basis. I respectfully adopt his Honour's reasoning in support of the view that indemnity costs should generally be ordered in favour of a successful applicant in contempt proceedings.[283] I note that any fine would be payable not to the Grocon plaintiffs but to consolidated revenue.[284]

210 The Grocon plaintiffs were successful in establishing all 30 charges of contempt that were litigated in the first and second contempt applications. It is true that, once the CFMEU came to be represented in the matter, its legal representatives acted sensibly and helpfully. That, however, is no reason to deny the Grocon plaintiffs indemnity costs. On the other hand, this case bears no resemblance to the only case of which I am aware in which this Court has "liberated" a party from scale, namely Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3).[285]

211 As mentioned above, the Attorney-General did not strongly push for costs. In any event, I would not require the CFMEU to pay the costs of the Attorney-General. It would be unduly oppressive to require it to pay the costs of two prosecutors in this case.

212 Even without liberation from scale, the amount that will be due from the CFMEU to the Grocon plaintiffs for indemnity costs in the first and second contempt applications will obviously be very large. It seems that it may be in the order of $1 million or more. Further, as I will shortly indicate, the CFMEU will be called upon to pay costs to the Grocon plaintiffs in the third contempt application. Again, the amounts will be very significant. It will have to meet its own costs, which must also be substantial. In addition, there will be fines to be paid in the third contempt application, as I will indicate. Applying the principle of totality, I take all of those matters into account in assessing the appropriate amount of the fines which I propose to impose in the first and second contempt applications.[286] Those fines will be:

(e) For the contempt on 5 September 2012, $150,000.

Application of the penalty principles to the Cambar/Hollow Core contempts

214 The circumstances of the Cambar/Hollow Core contempts are set out fully above. I will not repeat them. Nor will I repeat the matters dealt with above concerning the CFMEU's prior history, size and financial means.

215 The CFMEU has not exhibited any contrition nor made any apology for the Cambar/Hollow Core contempts.

216 However, the CFMEU is entitled to some mitigation of penalty for its "plea". There was some debate as to whether the plea could be called an early one. I cannot accept that description because the plea only occurred on the very day fixed for the commencement of the final hearing of the liability phase of the third contempt. On the other hand, I accept that the plea was made straight after access to the running notes of Acting Senior Sergeant Waters was first made available to the CFMEU. Still, in my view, that does not count for too much. The handing over of the notes of Acting Senior Sergeant Waters revealed further evidence that was available against the CFMEU. It related particularly to what the policewoman had said to the CFMEU officials at around 10:40 am on 26 April 2013. By definition, those officials themselves were at all times aware of what had been said to them by the policewoman.

217 Nevertheless, the "resolution" of the liability phase of the third contempt application resulted in some savings of time and cost to the Court and to witnesses and it facilitated the course of justice. There will be a discount on penalty accordingly.

218 As indicated above, the objective seriousness of the Cambar/Hollow Core contempts was not of the same order as that of the Emporium and McNab contempts, for the reasons I have already given. Nevertheless, it was a deliberate contempt. It was serious. It added to the CFMEU's sorry history of disobedience to court orders. It must be duly punished.

219 As to the question of costs on this application, once again I think that the usual principle should apply, as indicated by Dixon J in Gashi. It is true that by the resolution arrived at, the CFMEU achieved a diminution in the seriousness of the charges it was facing. However, the CFMEU has nevertheless been found to have committed a serious contempt of court, as ultimately alleged by the Grocon plaintiffs. Their bringing of the proceedings has enured to the public interest. The penalty is not payable to them. I consider that an order for indemnity costs in favour of the Grocon plaintiffs is appropriate. I note that its actual costs as at 25 September 2013 are said to be approximately $400,000, excluding GST.

220 Once again, I do not consider it would be appropriate to require the CFMEU to pay any part of the costs of the Attorney-General, because such an order would be unduly oppressive. It is true that the CFMEU failed in their resistance to the Attorney-General's application for joinder. However, the Attorney-General's application was novel when made and it was not unreasonable for the CFMEU to continue to resist it.

221 It was common ground that it would be appropriate to impose only a single penalty in relation to the Cambar/Hollow Core contempts. They were very closely related to each other. I accept the parties' joint position in that regard.

222 Having regard to the principle of totality, and taking into account the penalty and costs for the first and second contempt applications and the requirement for the CFMEU to pay the costs of the Grocon plaintiffs in this third contempt application, as well as its own costs, I consider that the appropriate single penalty for the Cambar/Hollow Core contempts is a fine of $100,000. This will bring the total amount of the fines to be paid in respect of the three contempts to $1.25 million. Indemnity costs will be additional.

223 For the reasons set out above, and subject to any submissions as to form, I propose to make orders as follows:

(1) The Attorney-General for the State of Victoria is joined as a third applicant to the application by summons brought by the first and third plaintiffs filed on 29 April 2013 (as amended from time to time).

(2) The first defendant (the CFMEU) is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Chief Justice Warren on 22 August 2012, the CFMEU did on 28 August 2012 prevent, hinder and interfere with free access to the building construction site located at 269-321 Lonsdale Street, Melbourne referred to in the order ("the Emporium site") and did on that day incite persons to prevent access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.

(3) The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 29 August 2012 prevent, hinder and interfere with free access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.

(4) The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 30 August 2012 prevent, hinder and interfere with free access to the Emporium site by persons, and the CFMEU is convicted and fined $250,000 for that criminal contempt.

(5) The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 28 August 2012, the CFMEU did on 31 August 2012 hinder and interfere with free access to the Emporium site by persons and did cause and procure persons to prevent free access to the Emporium site, and the CFMEU is convicted and fined $250,000 for that criminal contempt.

(6) The CFMEU is adjudged in criminal contempt of this Court in that, contrary to the order made by the Honourable Chief Justice Warren on 21 August 2012, the CFMEU did on 5 September 2012 prevent, hinder and interfere with, on two occasions, free access by a vehicle to the site located at McNab Avenue, Footscray referred to in the order, and the CFMEU is convicted and fined $150,000 for that criminal contempt.

(7) The CFMEU is adjudged in civil contempt of this Court in that, contrary to the order made by the Honourable Justice Cavanough on 4 March 2013, the CFMEU did on 29 April 2013 hinder the supply of goods by Cambar Precast (Vic) Pty Ltd to the third plaintiff at the Emporium site and did hinder the supply of goods by Hollow Core Concrete Pty Ltd to the first plaintiff at the building site at 150 Collins Street, Melbourne, and the CFMEU is fined a total $100,000 for those two civil contempts.

(8) The CFMEU shall pay the costs of the first, second and third plaintiffs of their amended summons filed 30 August 2012 on an indemnity basis.

(9) The CFMEU shall pay the costs of the first and third plaintiffs of their summons filed 29 April 2013 (as amended from time to time) on an indemnity basis.

(10) The Attorney-General for the State of Victoria shall bear his own costs of these proceedings.

(11) There be a stay on the payment of the fines for 30 days from the date of this order.

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

[2] [2009] FCAFC 171, [28] (internal citations omitted).

[3] Witham v Holloway (1995) 183 CLR 525, 530; Seymour v Migration Agents Registration Authority [2006] FCA 965 (Rares J), [73]-[108], esp at [104].

[4] [2013] VSC 275, [13]. See also Allbeury v Corruption & Crime Commission [2012] WASCA 84, [68] (Buss JA); CFMEU v Boral Resources (Vic) Pty Ltd [2013] VSCA 378, [10].

[5] Cf Re Perkins; Mesto v Galpin [1998] 4 VR 505, 510.

[6] Hannaford v HH (No 2) [2012] FCA 560 at [25], [36]-[37] (Dodds-Streeton J) and cases there cited. See also Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 112 [51]-[52] (Logan J).

[7] Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596, 618 [51], [55] (Gray J), [166], [188] (Bromberg J).

[9] Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 at [36]- [49].

[12] The relevance of the references to those two particular individuals will appear below.

[13] The second plaintiff was not an applicant because the alleged breaches related to building sites with which it was not connected.

[14] See transcript 26 September 2012, 56-57.

[16] Transcript, 21 August 2013, pp 268-276, especially at 276.

[17] See ASIC v Ingleby [2013] VSCA 49 at [30], [45]-[46], [73], [101]; Director of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 1014 [8]-[9] (Gordon J).

[18] [2011] FCAFC 17; (2011) 276 ALR 596.

[19] [2013] VSCA 378.

[20] [2014] HCA 2.

[21] Transcript, 20 August 2013, pp 183-184.

[22] Barbaro at [35]-[36] ("party"); see also [59].

[23] Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 at [3], [27], [32].

[24] See outline dated 3 September 2012, para 2 and outline dated 12 September 2012, para 2.

[25] Ibid. He cited Attorney-General (UK) v Times Newspapers [1974] AC 273; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 774 and Broken Hill Pty Company Ltd v Dhagi [1996] VicRp 62; [1996] 2 VR 117. He referred also to J Edwards, The Attorney-General, Politics and the Public Interest (1984) 161-171.

[26] See outline dated 3 September 2012, [13(d)] and outline dated 12 September 2012, [16].

[27] Submissions filed 5 August 2013, para 2.2 (as adopted by submissions filed 12 August 2013, para 2.2), citing BHP v Dagi [1996] VicRp 62; [1996] 2 VR 117, 141 (Brooking JA) and Attorney-General (UK) v Times Newspapers [1974] AC 273, 311 (Lord Diplock).

[30] [1983] 1 AC 280, 310.

[31] [1974] 1 NSWLR 391, at 397ff. See [2.5] of the CFMEU's submissions of 5 August 2013, as adopted by its submissions of 12 August 2013.

[32] See outline of submissions in support of removal filed 12 August 2013 [2.3], referring to the outline of submissions on penalty dated 12 August 2013 at [14.10]-[14.17].

[33] Outline of submissions on removal application filed 12 August 2013, [2.4].

[34] [2011] VSCA 186.

[35] Transcript, 19 August 2013, pp 2-3. See the procedural history set out in the written submissions of the Attorney-General dated 15 August 2013, as to which history no issue was taken by the CFMEU.

[36] Transcript 19 August 2013, pp 2-3.

[37] [2004] VSC 390 (Hollingworth J).

[38] [2012] VSC 457 (Lansdowne AsJ).

[39] Transcript, 19 August 2013, pp 6-7.

[45] [2009] FCA 194; (2009) 254 ALR 306.

[46] [2009] FCA 650.

[47] [2009] FCA 194; (2009) 254 ALR 306, 308 [8]-[15]; [2009] FCA 650 at [4].

[48] Transcript, 19 August 2013, p 13 and see now transcript, 28 February 2014, pp 13-15.

[50] Witham v Holloway (1995) 183 CLR 525, 530.

[51] See BHP v Dagi [1996] VicRp 62; [1996] 2 VR 117 at 126 (Winneke P) and 174 (Phillips JA).

[52] Transcript, 19 August 2013, p 17. See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, especially 90-96; Magaming v R [2013] HCA 40; (2013) 302 ALR 461 [20], [68]. And see now Barbaro [2014] HCA 2, [47].

[53] [2001] FCA 774.

[54] [2009] FCA 151 at [80].

[55] [2001] FCA 774; (2001) 188 ALR 653.

[56] Witham v Holloway (1995) 183 CLR 523, 533.

[58] [2011] VSCA 186.

[59] Written submissions dated 5 August 2013, [2.10].

[61] Transcript, 14 November 2013, p 110.

[62] [2013] VSCA 378.

[63] [2013] VSCA 378, [8].

[68] Citing, as before, Boral [2013] VSC 572 at [60]- [70] (Digby J) and, in addition, CFMEU v Boral [2013] VSCA 378 at [11] (Beach JA).

[69] Transcript, 28 February 2014, pp 14-15.

[70] Transcript, 28 February 2014, pp 15.

[71] See also Clarke v Chadburn [1985] 1 WLR 78 (Megarry J), 82-83.

[72] Roadshow Films Pty Ltd v iiNET Pty Ltd [2011] HCA 54; (2011) 284 ALR 222, 223-4 (High Court of Australia). My emphasis.

[76] [2013] VSC 572, [111].

[77] See Williams, Civil Procedure Victoria [20.01.10] and cases there cited.

[79] [2013] VSC 572 [112].

[80] At the hearing on 28 February 2014, the CFMEU accepted that, in view of the refusal of leave to appeal from the judgment of Digby J, I ought to follow any relevant statements of law or legal principle made by his Honour in that case.

[81] Transcript, 15 November 2013, p 157.

[82] Cf Boral [2013] VSCA 378, [20] (Osborn JA). See above.

[84] Peter v Shipway [1908] HCA 52; (1908) 7 CLR 232, 259; Williams, Civil Procedure Victoria [64.01.95].

[85] John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351, 364-5; Seymour v Migration Agents Registration Authority [2006] FCA 965.

[86] CFMEU v Boral Resources (Vic) Pty Ltd [2013] VSCA 378, [10].

[87] Cf Re Perkin; Mesto v Galpin [1998] 4 VR 505, 515 (Brooking JA); National Australia Bank Ltd v Juric [2001] VSC 375 [151]-[154] (Gillard J); Advan Investments Pty Ltd v Dean Gleeson Sales Pty Ltd [2003] VSC 201 (Gillard J), especially at [36]-[51].

[88] See Miller v Eurovox Pty Ltd [2004] VSCA 211, [37] (Vincent JA); Scott v Evia [2007] VSC 15 at [45], [46], [50], [70] (Dodds-Streeton J) (appeal dismissed, sub nom. Haritopoulos Pty Ltd v Scott [2007] VSCA 174).

[89] [2008] VSC 251.

[91] See, eg, National Australia Bank v Juric (No 3) [2002] VSCA 86 (Gillard J), [68]-[69].

[92] [2005] VSCA 231; (2005) 12 VR 1, 6 [17]-[18].

[93] [1999] VSCA 14; (1999) 103 A Crim R 261 at 281.

[94] Ibid. See also Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; (2001) 4 VR 285, 291-292 [16] (Tadgell JA, with whom Callaway and Batt JJA agreed).

[95] [2005] VSCA 231; (2005) 12 VR 1, 6 [18].

[96] [2005] VSCA 231; (2005) 12 VR 1, 13 [44].

[97] [2011] VSC 448.

[98] Attorney-General's written submissions filed 16 August 2013 [5].

[99] Pico Holdings v Voss [2002] VSC 319 (Gillard J) [65]-[66]; Law Institute of Victoria Ltd v Nagle [2005] VSC 47 (Gillard J) [12]. See Attorney-General's written submissions filed 22 August 2013.

[100] [2002] VSC 319, [64].

[101] [1998] 1 VR 359, 366.

[102] [2005] VSC 47.

[104] Such as those set out in the Corporations Act 2001 (Cth), the now renamed Australian Competition and Consumer Act 2010 and the Fair Work Act 2009 (Cth).

[105] [2005] FCA 1037; (2005) 219 ALR 714, 722 [30].

[106] ACCC v Australian Safeway Stores Pty Ltd [1997] 145 ALR 36, 44-46 (Goldberg J) and CFMEU v Williams [2009] FCAFC 171; (2009) 191 IR 445 [17] and [28]-[30] (Moore, Middleton and Gordon JJ).

[107] [2002] VSC 319 (Gillard J).

[108] [2005] VSC 47 (Gillard J).

[109] [2005] FCA 1037; (2005) 219 ALR 714, [30] (Finkelstein J).

[110] (1995) 183 CLR 525, 534.

[111] [1998] 1 VR 359, 371.

[112] See Witham v Holloway (1995) 183 CLR 525, 543 (McHugh J); Haritopoulos Pty Ltd Scott [2007] VSCA 174, [2] (Nettle JA); Pico Holdings, Inc v Voss [2002] VSC 319, [54] (Gillard J).

[114] Webb v O'Sullivan [1952] SASR 65.

[115] [2007] VSCA 49; (2007) 15 VR 501, [47] (Eames JA with whom, in this respect, Buchanan, Vincent, Nettle and Redlich JJA agreed).

[116] Compare Director of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 1014 (Gordon J) [48]-[56].

[117] [1989] HCA 33; (1989) 167 CLR 348, 354. The CFMEU also referred to Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458.

[118] [1998] 1 VR 664, 676.

[119] CFMEU v Williams [2009] FCAFC 171.

[121] [1999] VSCA 14 [38], [44]-[45].

[122] See Barbaro [2014] HCA 2, [39]-[40]; Nash v R [2013] VSCA 172 [1]-[2].

[123] See Williams, Civil Procedure Victoria [75.11.02].

[124] (1996) 86 A Crim R 183, 185.

[125] [2011] VSC 448 [5].

[126] [2011] FCA 557 [14].

[127] [2009] FCA 650 [6].

[128] Wong v the Queen [2001] HCA 64; (2001) 207 CLR 584, 611 [75]; Barbaro [2014] HCA 2, [34].

[129] Rules, r 75.11(2); Miller v Eurovox Pty Ltd [2004] VSCA 211, [37] (Vincent JA); Scott v Evia [2007] VSC 15 at [45], [46], [50], [70] (Dodds-Streeton J) (appeal dismissed, sub nom. Haritopoulos Pty Ltd v Scott [2007] VSCA 174).

[130] (1995) 183 CLR 525, 530.

[131] Witham v Holloway (1995) 183 CLR 525, 543 (McHugh J); Haritopoulos Pty Ltd Scott [2007] VSCA 174, [2] (Nettle JA); Pico Holdings, Inc v Voss [2002] VSC 319, [54] (Gillard J).

[132] [2003] VSC 201.

[136] CFMEU's written outline of submissions filed 12 August 2013, [9.1].

[137] Ibid [2.1]. Transcript, 19 August 2013, p 21.

[138] Scott v Evia [2007] VSC 15 at [45], [46], [50], [70] (Dodds-Streeton J).

[139] [2011] FCAFC 17; (2011) 276 ALR 596, 640 [177].

[140] Ibid, citing earlier authorities.

[141] See, eg, Commissioner for Fair Trading v Voulon [2006] WASC 261 at [121], referred to further below.

[142] [2011] FCAFC 17; (2011) 276 ALR 596, 640 [177].

[144] (1995) 183 CLR 525, 530.

[145] [1986] HCA 46; (1986) 161 CLR 98.

[146] [1965] HCA 21; (1965) 112 CLR 483.

[147] [1965] HCA 21; (1965) 112 CLR 483, 489.

[148] [1965] HCA 21; (1965) 112 CLR 483, 499-500.

[149] [1953] 2 D.L.R. 785.

[150] [1964] Ch. 195.

[151] [1972] 2 Q.B. 52.

[152] [1986] HCA 46; (1986) 161 CLR 98, [20].

[153] (1985) 9 FCR 194.

[154] [1965] HCA 21; (1965) 112 CLR 483.

[157] (1985) 9 FCR 194, 207. See also at 210, 211, 214. See, also, per Toohey J at 219-222.

[158] [1986] HCA 46; (1986) 161 CLR 98, especially at 103, 104, 113, 114.

[159] [2006] FCA 965, [107]. See also Law Institute of Victoria v Nagle [2005] VSC 47 (Gillard J).

[160] Ibid at [105] (references and citations omitted).

[161] [2009] NSWLEC 92.

[163] [1999] HCA 19; (1999) 198 CLR 435 at [147]- [148].

[164] Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, [80].

[165] [1997] SASC 6187; (1997) 69 SASR 150.

[167] (1995) 183 CLR 525.

[168] (1995) 183 CLR 525, 542.

[170] [2009] SASC 269, [17]-[23].

[172] [1998] SASC 6729, page 6 of 7 of the AustLII print.

[174] [2009] FCA 650, [35]-[37].

[175] [2006] WASC 261, [121].

[176] [1993] 1 All ER 630, 641.

[177] [1968] 1 All ER 543, 556.

[178] [1978] AC 297, 321.

[179] [1955] HCA 12; (1995) 93 CLR 351.

[180] At [363]-[364]. My emphasis.

[181] [2011] VSC 448.

[183] [2007] VSC 9, [71]-[83].

[184] [2007] VSCA 174.

[186] Ibid at [90], [98], [100] and [102].

[188] See National Australia Bank v Juric [2001] VSC 375, [156]-[163] especially at [158] (Gillard J).

[189] Grocon plaintiffs' written submissions filed 21 June 2013, [2]-[9].

[190] It might be added that there was also police involvement at the McNab site, albeit on a much smaller scale.

[191] Grocon plaintiffs' written submissions filed 21 June 2013, [9(d)].

[194] Law Institute of Victoria v Nagle [2005] VSC 47, [4]-[5] (Gillard J) and see further below.

[195] Citing CFMEU v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; (2003) 196 ALR 350, 358 [40].

[196] As indicated in my reasons on liability, I am not necessarily to be taken as accepting that the term "blockade" is apt.

[197] Grocon plaintiffs' written submissions filed 21 June 2013, [28].

[198] Attorney-General's written submissions filed 21 June 2013, [2].

[200] Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275, [361] (being Setka and Reardon).

[202] [2011] FCA 557, [23].

[203] See CFMEU's outline on penalty dated 12 August 2013, especially at [9.2]-[11.3].

[204] Citing Home Office v Harman [1983] 1 AC 280, 310.

[205] Citing my judgment in Livingspring Pty Ltd v Ng [2007] VSC 9 at [84].

[206] Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275, [348].

[207] Bovis Lend Lease Pty Ltd v CFMEU (No 2) [2009] FCA 650, [35]-[36].

[208] Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275, [232].

[209] [2010] FCA 754.

[210] Each was filed on 16 August 2013.

[211] Particularly on 19 August 2013, especially at transcript pp 48-56 and 77-85 (Mr McDonald SC), pp 97-99 (Mr Wood SC) and pp 110-135 (Mr Morrissey SC).

[212] Transcript, 26 September 2012, p 56.

[213] [2007] VSC 9.

[214] Transcript, 15 November 2013, pp 174-175. See Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, [65]-[71] (Biscoe J) and cases there referred to. Cf Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596, 640-641, [178]-[179] (Bromberg J).

[215] Transcript, 19 August 2013, p 13; transcript, 15 November 2013, p 174.

[216] [2006] WASC 261, [121].

[217] Being the dictionary definition of contumacy which was applied by the Full Federal Court in Mudginberri and by Miller J in Commissioner for Fair Trading v Voulon, as indicated above

[218] Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 at [8]- [9], [39].

[219] Ibid [19], [20] and see the Court file.

[225] Transcript, 20 August 2013, p 160.

[226] Seymour v Migration Agents Registration Authorities [2006] FCA 965, [95] (Rares J).

[227] Transcript, 20 August 2013, p 168.

[229] Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596, especially at [177] (Bromberg J).

[230] [2003] FCAFC 13; (2003) 196 ALR 350, 358 [40].

[231] [2010] FCA 754.

[233] [2010] FCA 754 at [158]- [164], especially [160(d)].

[234] [1987] VicRp 62; [1987] VR 721.

[235] [2009] FCA 650, [17].

[236] Grocon & Ors v Construction, Forestry and Mining Union & Ors [2013] VSC 275, [99]-[107].

[238] See Bovis Lend Lease Pty Ltd v CFMEU (No 2) [2009] FCA 650, [19]-[20] (Tracey J) and cases there referred to.

[239] [1986] HCA 46; (1986) 161 CLR 98, 108.

[240] [1953] 2 D.L.R. 785.

[241] [2009] FCA 650.

[242] [2011] FCA 557.

[244] [2001] FCA 336.

[245] See Haritopoulos Pty Ltd v Scott [2007] VSCA 174, [98].

[246] Grocon written submissions filed 25 September 2013, [5].

[247] See CFMEU v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; (2003) 196 ALR 350, 358 [40].

[248] Cf. Woodside Burrup Pty Ltd v CFMEU [2011] FCA 949, [48] (Gilmour J).

[249] [2012] FCA 966 (4 December 2012, Buchanan J).

[250] [2003] FCAFC 13; (2003) 196 ALR 350.

[251] [2009] FCA 194; (2009) 254 ALR 306.

[252] [2011] FCA 557 (2 June 2011, Tracey J).

[253] [2014] HCA 2.

[254] [2013] VSCA 49.

[255] Alfred [2011] FCA 557, [39].

[256] [2012] FCA 966 (4 September 2012, Buchanan J).

[257] Woodside Burrup v CFMEU [2011] FCA 949 (Gilmour J) [48(4)].

[258] [2012] VSC 242, [5 scil, 8].

[259] (1983) 79 Cr App R 79, 84.

[260] [2007] VSC 15, [179].

[261] Woodside Burrup Pty Ltd v CFMEU [2011] FCA 949, [48] (Gilmour J).

[262] Attorney-General's written submissions filed 21 June 2013, [71].

[263] [2003] FCAFC 13; (2003) 196 ALR 350, 358 [40].

[264] [1980] VR 62. See CFMEU's outline on penalty filed 12 August 2013, [5.5].

[265] Written submissions on penalty in the third contempt application filed 10 October 2013.

[266] [2009] FCA 650.

[268] Stuart-Mahoney v CFMEU [2008] FCA 1426; (2008) 177 IR 61; Woodside Burrup [2011] FCA 949 (Gilmour J) [69].

[269] [2001] FCA 336, [10]. See also Bovis [2009] FCA 650 [42].

[270] Attorney-General's written submissions on penalty filed 21 June 2013, [84].

[271] [2013] FCA 966, [3].

[272] [2012] FCAFC 20; (2012) 287 ALR 249, 266 [68].

[273] [2013] FCA 1371, especially at [27] and following.

[274] [2011] FCA 557.

[275] [2014] HCA 2.

[276] [2013] VSCA 49.

[277] Woodside Burrup Pty Ltd v CFMEU [2011] FCA 949, [48].

[278] A_llen v The Queen_ [2013] VSCA 44, [54] (Priest JA, with whom Maxwell P and Weinberg JA agreed).

[279] [2000] FCA 629, [79]-[80].

[280] (1998) 153 ALR 641 at [1] per Hayne J.

[281] [1983] HCA 2; (1983) 152 CLR 238, 244.

[282] [2011] VSC 448.

[283] See also Bovis [2009] FCA 650 [45].

[284] Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2013] FCA 1380, [37]-[38] (Gilmour J).

[285] [2012] VSC 399 (Croft J). See especially at [89]-[91].

[286] See also Bovis [2009] FCA 650 [38]-[40].