Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors - [2014] VSC 134 - VSC 2014 case summary — Zoe

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

[2014] VSC 134

Supreme Court of Victoria|2014-03-31|Before: Cavanough J

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At a glance

Source facts

Court

Supreme Court of Victoria

Decision date

2014-03-31

Before

Cavanough J

Source

Original judgment source is linked above.

Judgment (393 paragraphs)

[1]

The Applicant also submitted that the defiance of the Order was public in nature: see Mudginberri Station at 108. The Applicant tendered the transcript and a sound recording of a radio interview of Bill Oliver, Victorian Branch Secretary of the CFMEU Construction and General Division, in support of this contention. The tender was not objected to by the CFMEU, save as to relevance. The interview took place on 25 February 2009, the third day of the contempt hearing. It was broadcast on 774ABC radio. When asked by the interviewer "[w]hy are your members blocking access to the site?", Mr Oliver replied "Well, we've got a problem down there ... and we've ended up in a court situation, sort of thing, at the moment." It was clear that Mr Oliver was referring to this Court. The Order was not mentioned. Counsel for the CFMEU contested the submission that the CFMEU was in public defiance of the Court's order. He contrasted the circumstances in Mudginberri Station where the union was found to be in public defiance of the court's order because the secretary of the union had stated publicly that the union would not pay the fine imposed by the Court with Mr Oliver's remarks.
A public announcement of defiance of the kind which occurred in Mudginberri Station may readily be characterised as being "public in nature". The statement was made in circumstances where it was plainly intended that it would be reported and it was, in fact, widely disseminated in the media. Although Mr Oliver was interviewed on a radio station he did not make any statement that the union was defying or was intending to defy orders made by this Court. Plainly he was aware of the proceeding and he knew, or ought to have known, of the orders made by Marshall J. He did not, however, acknowledge that the union was acting in defiance of them. I do not, therefore, consider that the statements made by Mr Oliver during the radio interview can be said to have expressed defiance of the Court's orders.
There were, however, a number of acts of public defiance of the Court's orders at the Site. When presented with copies of the orders by representatives of the Applicant, a number of the CFMEU's officials either refused to accept them or allowed them to fall to the ground despite being advised of the nature of the documents. Statements were also made by some of the officials to the effect that they would act on advice from the union office rather than have regard to the terms of the orders which they were told required them to desist from obstructive action. This conduct occurred outside the Site gates and in the presence of employees of the Applicant. They constituted public acts of defiance even though they were not publicised to the wider community. Such defiance is not to be treated with the same gravity as defiance of the kind which occurred in . It is, however, a matter of relevance in fixing a penalty in the present case.

[40]

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.

[50]

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:

[60]

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.

[63]

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.

[70]

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.

[89]

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.