FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    In these proceedings, the Director of Fair Work Building Industry Inspectorate (the Director) seeks the imposition of pecuniary penalties and related orders against the Construction, Forestry, Mining and Energy Union (CFMEU) and eight other individual respondents under ss 545 and 546 of the Fair Work Act 2009 (Cth) (FWA) including in relation to conduct at the Myer Emporium Site at 269-321 Lonsdale Street, Melbourne (the Emporium Site) on 22, 23, 25, 27, 28, 29, 30, 31 August and 4 and 6 September 2012 and at 1 McNab Avenue, Footscray (the McNab Site) on 17, 18, 19, 20, 21, 28 August and 5 and 6 September 2012.

2    The substantive proceeding was set down for hearing on 6 August 2014 with an estimate of three weeks. By an interlocutory application filed on 10 June 2014, the respondents sought to vacate those hearing dates. By paragraph 2 of orders made on 24 July 2014, the primary judge refused that application. The respondents sought leave to appeal. The trial was adjourned to 11 August 2014 and the application for leave to appeal was heard by a Full Court on 8 August 2014.

3    On that day, 8 August 2014, the Court granted the CFMEU leave to appeal from paragraph 2 of the orders of the primary judge of 24 July 2014, otherwise dismissed the application for leave to appeal and dismissed the appeal. These are the reasons for the orders that were made on 8 August 2014.

4    The issue on the application for leave to appeal and the appeal may be simply stated. The CFMEU was tried in the Supreme Court of Victoria (SCV) on 30 charges of contempt for breaching orders made by that Court on 21, 22 and 28 August 2012. It was convicted of five criminal contempts for conduct between 28 and 31 August 2012 at the Emporium Site and for conduct on 5 September 2012 at the McNab Site. The CFMEU was fined $1.05 million for the criminal contempts. The CFMEU appealed to the Court of Appeal of the SCV against those five convictions of criminal contempt. Argument was heard on 25 and 28 July 2014. Judgment is reserved.

5    Section 553(1) of the FWA provides that proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if criminal proceedings are commenced or have already commenced against the person for an offence and the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made. Section 553(2) provides that the proceedings for the pecuniary penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the pecuniary penalty order are dismissed.

6    The question which arose was whether the proceedings in this Court against the CFMEU stood dismissed or stayed by reason of the convictions entered against the CFMEU in the SCV for the criminal contempts. The CFMEU submitted that the proceedings were automatically stayed and that if it is subsequently “not convicted”, the Director “may” resume the stayed proceedings. The Director submitted that the proceedings were neither stayed nor dismissed.

7    For the reasons that follow, these proceedings against the CFMEU stand dismissed by reason of s 553(2) to the extent that the proceedings sought pecuniary penalty orders in relation to the conduct that is substantially the same as the conduct the subject of the contempt charges. That is because the contempt charges were or are criminal proceedings for offences in respect of which the CFMEU has been convicted. If the CFMEU is subsequently “not convicted” (in whole or in part) because the appeal in the SCV is allowed and the convictions are quashed, the Director may resume that aspect of these proceedings to seek pecuniary penalty orders. The balance of these proceedings (as against the CFMEU and the other respondents) remains unaffected.

2.    BACKGROUND

8    Grocon Constructors (Victoria) Pty Ltd, Grocon (FCAD) Pty Ltd, Grocon Constructors (Vic) Pty Ltd, Grocon Pty Ltd and Grocon Builders (Vic) Pty Ltd are part of the Grocon Group of companies. In August and September 2012, those Grocon companies were relevantly engaged in two construction projects - at the McNab Site and at the Emporium Site.

(1)    SCV Proceedings

9    The first three of the Grocon companies named in [8] above (Grocon) applied to the SCV for restraining orders against the CFMEU and, on 21 August 2012, Chief Justice Warren made these orders against the CFMEU in relation to the McNab Site:

2.    Until the trial of this proceeding or further order, the [CFMEU] (whether by itself, its officers, servants, agents or howsoever otherwise) is restrained from:

(a)    preventing, hindering or interfering with free access to, and free egress from, the building site occupied by each of the First Plaintiff or Second Plaintiff located at [the McNab Site] by any person or vehicle;

(b)    ...

(c)    causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 2(a)-(b) of this order.

The authenticated order contained a penal notice.

10    The next day, on 22 August 2012, Grocon applied for further restraining orders and the Chief Justice relevantly made the following further orders against the CFMEU in relation to the Emporium Site:

Until 4.15 pm on 28 August 2012, the [CFMEU] (whether by itself, its officers, servants, agents or howsoever or otherwise) and all persons who were on 22 August 2012 or are now, or have at any time since 22 August 2012 been present at the picket line at the [Emporium Site], are restrained from;

(a)    preventing, hindering or interfering with free access to, and free egress from, the [Emporium Site] by any person or vehicle; and

(b)    ...

(c)    ...; and

(d)    causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 3(a)-(c) of this order.

The authenticated order contained a penal notice.

11    On 28 August 2012, the summons issued on 22 August 2012 (see [10] above) returned to Court and relevantly Cavanough J made the following orders against the CFMEU in relation to the Emporium Site:

3.    Until the trial of this proceeding or further order, the CFMEU (whether by itself, its officers, servants, agents or howsoever or otherwise) is restrained from:

(a)    preventing, hindering or interfering with free access to, and free egress from, the building site known as the [Emporium Site] occupied by the third plaintiff … by any person or vehicle;

(b)     ...

(c)     ...; and from

(d)    causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 3(a)-(c) of this order.

4    By 4 pm on 29 August 2012, the CFMEU must, in writing, direct each of the following of its employees or officers, namely Shaun Reardon, Derek Christopher, Elias Spernovasilis, Noel Washington and John Setka, that until the hearing and determination of this proceeding or further order of this Court, he must not:

(a)    attend within 50m of any part of the building site occupied by each of the First Plaintiff or Second Plaintiff located at [the McNab Site];

(b)    attend within 50m of any part of the [Emporium Site];

…

5    By 1pm on 30 August 2012, the CFMEU, by a duly authorised person, must file and serve on the solicitors for the plaintiffs an affidavit setting out the steps taken by the CFMEU to comply with paragraph 4 of this order.

(2)    SCV Contempt Proceedings

12    On 30 August 2012, Grocon applied to the SCV by a further amended summons for orders that the CFMEU “be punished for its contempt” in breaching the 22 August 2012 Order. The statement of charge listed six charges each relating exclusively to incidents said to have occurred in the vicinity of the Emporium Site on 28 August 2012.

13    On 7 September 2012, Grocon made a further application to the SCV by summons for orders that the CFMEU “be punished for its contempt” in breaching the 21 August 2012 Order and the 28 August 2012 Order. The statement of charge listed 27 charges. Eighteen of the charges – six per day – related to events at the Emporium Site on 29, 30 and 31 August respectively. The other nine charges related to events near the McNab Site on 5 September 2012. Charges 19, 20 and 21 of this summons were not pressed at the trial of the contempt charges. The Victorian Attorney-General was joined as a plaintiff in the SCV contempt proceedings.

14    The remaining 30 charges against the CFMEU were heard in September and October 2012.

15    On 24 May 2013, the SCV found all 30 charges of contempt to be made out: Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 (the Liability Reasons). The Liability Reasons described the proceedings as follows (at [13]):

Although this is in form a civil proceeding, safeguards similar to those appropriate in criminal proceedings apply [Doyle v Commonwealth (1985) 156 CLR 510, 516. See also and compare Briggs v Lunt (No 4) [2011] WASCA 145 [34]-[45]]. Thus, as the applicants accept, the onus of proving a charge of contempt of court falls on the moving party, and such a charge must be proven beyond reasonable doubt [Witham v Holloway (1995) 183 CLR 525; Sigalla v TZ [2011] NSWCA 334 [25]-[28]]. On the other hand, the distinction between civil and criminal contempt has not been entirely abolished and not all features of a criminal trial or of criminal procedure are applicable [See Hearne v Street (2008) 235 CLR 125, 131; Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 [37]-[67] (Tobias JA), [154] (Basten JA), [194]-[199] (Campbell JA); Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [63]-[104] (Beazley JA), [137] (McColl JA), [140], [166]-[174] (Lindgren AJA); cf Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117, 142-143 (Brooking JA); 172-173 (J.D. Phillips JA)]. An obvious example is that allegations of contempt of this Court are not prosecuted before juries but rather are brought by way of the summary procedure provided for in Order 75 of Chapter I of the Supreme Court Rules. Generally speaking, Chapter I relates to civil, not criminal, procedure.

16    On 31 March 2014, the SCV made orders, amongst others (the Contempt Orders):

2.    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 [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 Cavanaugh 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 [the McNab Site], and the CFMEU is convicted and fined $150,000 for that criminal contempt.

…

(Emphasis added.)

The SCV published reasons for making the Contempt Orders: Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134 (the Conviction Reasons).

17    On 27 June 2014, the CFMEU filed an Amended Notice of Appeal in the SCV Court of Appeal in respect of the Contempt Orders (the Civil Appeal). The CFMEU also filed in the Criminal Division of the SCV Court of Appeal a Notice of Application for Leave to Appeal against Conviction, a Notice of Application for Leave to Appeal against Sentence and a Revised Written Case in support of those Applications (the Criminal Appeal). The Criminal Appeal was filed on 28 April 2014. Both the Civil and Criminal Appeals included a claim that the trial judge should not have convicted the CFMEU of criminal contempts. As noted above, the Civil and Criminal Appeals were heard on 25 and 28 July 2014. The Court of Appeal reserved its decision.

(3)    Federal Court Proceedings

18    On 5 October 2012, the Director filed these proceedings in the Federal Court. These proceedings seek pecuniary penalties, declarations and compensation against the CFMEU and John Setka, Shaun Reardon, Derek Christopher, Elias Spernovasilis, Bill Oliver, Ralph Edwards, Gareth Stephenson and Craig Johnston (the Respondents). In general terms, the Director alleges that the conduct which is the subject of the contempt proceedings (as well as other additional conduct on other dates) formed part of a course of conduct designed to coerce Grocon to accede to the CFMEU’s industrial demands. In March 2014, these proceedings were listed for trial on 6 August 2014 on an estimate of three weeks.

19    On 10 June 2014, the Respondents filed an interlocutory application seeking to vacate the trial and adjourn the proceeding to a date to be fixed until the Civil and Criminal Appeals were resolved. In the alternative, the Respondents submitted that the Court should declare the proceedings against the CFMEU (insofar as the proceedings sought pecuniary penalty orders) stayed by the operation of s 553 of the FWA and in the further alternative, the Court should stay the proceedings (in whatever form they remained) until the determination of the Civil and Criminal Appeals.

20    The primary judge heard the application on 21 July 2014. On 24 July 2014, his Honour published reasons for judgment: Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770. The primary judge held that the Contempt Orders and the Civil and Criminal Appeals were not a “criminal proceeding” of the kind contemplated by s 553 of the FWA (at [26] and [38]) and therefore concluded that s 553 did not preclude the trial of the proceeding commencing on 6 August 2014 (at [39]). The CFMEU was granted leave to amend its defence to plead defences based on ss 552 and 553 of the FWA. The interlocutory application was otherwise dismissed.

(4)    Application for leave to appeal

21    On 30 July 2014, the Respondents applied for leave to appeal against paragraph 2 of the orders of the primary judge and, on 31 July 2014, that application for leave to appeal and any appeal was listed for hearing before the Full Court on 8 August 2014: Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCA 802. The draft Notice of Appeal filed identified three appeal grounds:

1.    The [Primary] Judge erred in holding that the term “criminal proceeding” within the meaning of section 553(2) of the [FWA] should not be construed as applying to a proceeding for the “sui generis” offence of contempt; and by reason thereof erred in not finding that the proceedings against the [CFMEU] were dismissed by force of that section when it was convicted of that offence.

2.    Alternatively, the [Primary] Judge erred in holding that an appeal against conviction for criminal contempt of court were not “criminal proceedings” within the meaning of section 553(1) of the [FWA] and by reason thereof erred in not finding that the proceedings against the [CFMEU] were stayed by force of that section during the currency of its appeal against conviction for criminal contempt of court.

3.    In the further alternative (assuming section 553 did not operate to stay or dismiss the proceedings) the learned Judge erred in refusing to:

(a)    grant a discretionary stay of the proceedings; or

(b)    vacate the trial dates.

3.    ANALYSIS

(1)    Legislative framework

22    Division 4 of Part 4-1 of the FWA contains 10 sections under the heading “General provisions relating to civil remedies”. Sections 552-554 (inclusive) form part of Div 4 and recognise that civil and criminal proceedings may be commenced against a person for substantially the same conduct.

23    Section 552 deals with “Civil proceedings after criminal proceedings” and provides:

A court must not make a pecuniary penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

24    Section 553 deals with “Criminal proceedings during civil proceedings” and provides:

(1)    Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:

(a)    criminal proceedings are commenced or have already commenced against the person for an offence; and

(b)    the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.

(2)    The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

(Emphasis added.)

25    Section 554 deals with “Criminal proceedings after civil proceedings” and provides that “[c]riminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether an order has been made against the person under Division 2”.

(2)    Leave to appeal?

26    The Court granted the CFMEU leave to appeal against paragraph 2 of the orders made by the primary judge on 24 July 2014: see [3] above. The Court dismissed the balance of the application for leave to appeal.

27    The Director accepted that ground 1 of the draft Notice of Appeal (see [21] above) raised arguable questions of construction that were sufficient to satisfy the requirement that the decision of the primary judge was attended with sufficient doubt to warrant it being reconsidered by a Full Court: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. That concession was unsurprising. It was not disputed that prior to the decision of the primary judge, no court had directly considered s 553 of the FWA. The Director did not accept however that substantial injustice would result if leave were refused. Instead, the Director submitted that any question about the proper application of s 553 could be addressed on the exercise of any appeal from final orders, if necessary. That contention is rejected. Assuming s 553 of the FWA operates in the manner described below, then substantial injustice would result if leave to appeal were not granted. The substantial injustice would be that the part of the proceedings seeking pecuniary penalty orders which, by the operation of the statute, stand dismissed against the CFMEU would, contrary to that statutory provision, be permitted to continue. Such a course is inappropriate.

(3)    Proper construction of s 553 of the FWA

28    What then is the proper construction of s 553 of the FWA and how does it apply to the facts and circumstances of the current proceeding?

29    First, the express words of ss 552-554 of the FWA: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71].

30    Section 553 is comprised of two sub-sections. Sub-section 553(1) has two further sub-sections. There is no dispute that the chapeau to s 553(1) is satisfied. These Federal Court proceedings against the CFMEU are proceedings for a pecuniary penalty order for a contravention of a civil remedy provision. The conduct the subject of the SCV proceedings is substantially the same conduct in relation to which the pecuniary penalty order would be made in this Court: s 553(1)(b). Put another way, the CFMEU has been convicted and fined for criminal contempt five times in the SCV (see [16] above) and the conduct that underpinned those convictions comprises part of the conduct the subject of these proceedings brought by the Director.

31    The phrase “criminal proceedings … for an offence” in s 553(1) is not defined. That is not surprising. The range of crimes and punishments for crime has expanded so that a single series of events can give rise to several different offences to which different penalties can attach: Pearce v The Queen (1998) 194 CLR 610 at 614-615. Moreover, the FWA is a Commonwealth act. Potential criminal proceedings would include offences in contravention of one or more of numerous State and Commonwealth laws and further or alternatively, the common law. The manner in which those proceedings are filed, prosecuted and disposed of varies between the Commonwealth and the States and between the States. In understanding what is meant by “criminal proceedings … for an offence” in s 553, it cannot and does not matter what process starts the proceedings: Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 [72]. Those matters are not exhaustive but are indications of the wider proposition made by the High Court that there is no bright line between civil and criminal: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at [112]-[114] (per Hayne J) (Gleeson CJ at [1] and McHugh J at [3] concurring).

32    Section 553 does not sit alone. It forms part of Div 4 of the FWA which includes sections that appear in numerous Commonwealth Acts directed at a particular objective – ensuring that the rule or principle against double jeopardy is not infringed: for example ss 552 to 555 of the FWA. Those provisions were first inserted into the predecessor to the FWA by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), and became effective in March 2006. The provisions were considered necessary because of a debate about whether a civil penalty could be regarded as “punishment” for the purposes of double jeopardy. At that time, absent statutory provisions of this kind, Australian Courts had not extended common law double jeopardy protection to civil penalties. The Australian Law Reform Commission in Principled Regulation; Federal Civil and Administrative Penalties in Australia, Report No 95 (2002) at [11.37] addressed the applicability of the double jeopardy rule in civil penalty cases as follows:

These rationales [for the principle that a person should be protected against multiple punishments for the same conduct] appear no less applicable to parallel civil penalty and criminal liability (or multiple civil penalty liability) for the same conduct. It seems to follow that, if one of the rationales and aims of double jeopardy is to protect against double punishment, and if civil penalties are, at least to some extent, punitive in nature, double jeopardy protection should be extended to subsequent civil penalty proceedings for the same conduct. In the absence of any common law to this effect, this will require statutory intervention.

33    The double jeopardy principle has almost universal support but does not always have a single meaning: Pearce at 614-615. Moreover, the fact of double jeopardy can be and is spoken of at different stages of the process of criminal justice – for example, double prosecution, plea in bar and double punishment: Pearce at 614-622. In the present application, those considerations are not irrelevant. The provisions of the FWA are directed to address that concern and provide protection against double jeopardy for the same conduct. It is concerned with “a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”: R v Hoar (1981) 148 CLR 32 at 38 (Gibbs CJ, Mason, Aickin and Brennan JJ).

34    The question which then arises is whether the contempt proceedings in the SCV satisfy the balance of s 553.

35    In Witham v Holloway (1995) 183 CLR 525 at 530-531, the High Court (Brennan, Deane, Toohey and Gaudron JJ) described the distinction between civil and criminal contempt as follows:

In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice.

However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious … .

The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process. …

(Citations omitted.)

36    Their Honours returned to that distinction at 534 and stated:

The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in [Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 49], that all proceedings for contempt “must realistically be seen as criminal in nature”. The consequence is that all charges of contempt must be proved beyond reasonable doubt. …

37    What matters, at least in the case of contempt, is that punishments are imposed. As the High Court said in Witham v Holloway at 534:

Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company’s failure to comply with an order or undertaking.

38    Next the punishment is consequent upon entry of a conviction: see, for example, Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 49. That conviction for contempt is a conviction of an offence which is criminal in nature: see, by way of example, Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [29] (per Lee and Finn JJ); Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 at 320 and Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62 at [33]-[41]. As was stated in In Re Bramblevale Ltd [1970] 1 Ch 128 at 137, “[a] contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved”.

39    Consistent with what the High Court said in Witham v Holloway, the CFMEU was charged with contempt in the SCV: see [12]-[13] above. The Attorney-General was joined as a plaintiff. At least from the time of the joinder of the Attorney-General, the “proceedings [were] in the public interest to vindicate judicial authority or maintain the integrity of the judicial process”: Witham v Holloway at 531. The proceedings were instituted to punish the CFMEU for failing to obey Court orders. The relief sought was that the CFMEU “be punished for contempt”: see [12]-[13] above. Under the Evidence Act 2008 (Vic), proceedings are civil or criminal. A criminal proceeding is defined in that Act relevantly to mean the prosecution for an offence: sch 2 to the Evidence Act 2008 (Vic). In the SCV, the CFMEU was prosecuted for an offence (that of contempt) and the SCV proceedings were conducted to the criminal standard: see [15] above and s 141 of the Evidence Act 2008 (Vic). The CFMEU was convicted of five criminal contempts and was punished for that disobedience by the imposition of fines: see [16] above. The fact that contempt proceedings are, for reasons explained in the authorities, tried summarily and not before a jury is immaterial. So too is the fact that the proceedings were commenced in the civil jurisdiction of the SCV. The fact that different procedures have been adopted for trying contempt charges does not alter the essential characteristic of the proceedings as criminal proceedings. The Director’s submission that the contempt proceedings were civil proceedings when commenced because the charge did not plead that the conduct of the CFMEU was deliberate or contumacious should also be rejected.  The proceedings were criminal because Grocon and the Attorney-General were seeking convictions and punishment for offences.

40    What then was the effect of the contempt proceedings in the SCV on the proceedings before the Federal Court? From the outset, it is at least arguable that the proceedings issued by the Director in the Federal Court were stayed against the CFMEU to the extent that they sought pecuniary penalty orders: s 553(1). The SCV proceedings were criminal proceedings for an offence. Although it is strictly unnecessary to decide that the SCV proceedings were from commencement criminal proceedings for the purposes of s 553 of the FWA, the fact that five criminal convictions have been entered against the CFMEU in relation to substantially the same conduct cannot be ignored. Upon the entry of those convictions in the SCV in relation to substantially the same conduct, the proceedings in this Court against the CFMEU, to the extent that they sought pecuniary penalty orders in relation to that conduct, stood dismissed: s 553(2).

41    Those conclusions are to be understood against the background of the following additional matters. First, the Federal Court proceedings were stayed and then stood dismissed against the CFMEU, not against the named individuals in the Federal Court proceeding. Second, the Federal Court proceedings for a pecuniary penalty order were only dismissed against the CFMEU to the extent that the conduct in the Federal Court proceedings was substantially the same as the conduct which was the subject of the criminal contempts. The balance of the proceedings against the CFMEU and against the individuals remained and remains unaffected. Third, the Federal Court proceedings were stayed and then stood dismissed against the CFMEU because the Director sought the imposition of a pecuniary penalty order. Indeed, the Federal Court cannot make a pecuniary penalty order against the CFMEU for a contravention of a civil remedy provision if the CFMEU has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention of the civil remedy provision: s 552 of the FWA. As we have said, to the extent that the proceedings sought other relief against the CFMEU in relation to the conduct that was substantially the same as the conduct which was the subject of the criminal contempts, those proceedings remained unaffected.

42    Judgment in the Civil and Criminal Appeals is reserved: see [4] above. The outcome of those appeals is not known. The possibility that the convictions might be overturned on appeal does not detract, legally or practically, from the primary judge hearing the trial of these proceedings on and from 11 August 2014. In the event that the CFMEU is found to have contravened the FWA in these proceedings, the Court would (as things now stand) be limited to considering relief comprising declarations and compensation orders in relation to the conduct that was substantially the same as the conduct which was the subject of the criminal contempts. In the event that the CFMEU is successful in overturning its convictions, then the Director may seek to resume these proceedings to seek a pecuniary penalty order in relation to the conduct that was substantially the same as the conduct which was the subject of the criminal contempts. We do not consider that this possibility creates any risk of prejudice to the CFMEU that would warrant vacation of the hearing.

43    It was for those reasons, that the Court made the following orders on 8 August 2014. The CFMEU was granted leave to appeal, the balance of the application for leave to appeal was otherwise dismissed and the appeal was dismissed.

Associate:

Dated:    13 August 2014