FEDERAL COURT OF AUSTRALIA

Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770

THE COURT ORDERS THAT:

1.    The first respondent have leave to amend its defence to plead defences based on ss 552 and 553 of the Fair Work Act 2009 (Cth).

2.    The respondents’ interlocutory application, dated 6 June 2014 and filed on 10 June 2014, otherwise be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The hearing of this proceeding has, for some time, been fixed to commence on 6 August 2014. This date was fixed to ensure that senior counsel, briefed by the respondents, would be able to appear.

2    By an interlocutory application dated 6 June 2014 the respondents applied to vacate the trial dates or, in the alternative, for the court to fix a date to deal with preliminary applications by the respondents for leave to amend their defence and to stay proceedings insofar as they seek pecuniary penalty orders against the first respondent, the Construction, Forestry, Mining and Energy Union (“the CFMEU”). The interlocutory application came on for hearing on 11 June 2014. Some novel arguments were raised relating to the construction and application of ss 552 and 553 of the Fair Work Act 2009 (Cth) (“the FW Act”).

3    The applicant had little notice of the submissions and I considered it necessary that the Court should have the benefit of detailed argument on the points raised. Accordingly, I directed that the respondents file and serve written submissions in support of their interlocutory applications and that the applicant provide answering submissions. This has now been done and I have had the opportunity of considering those written submissions. The parties also took advantage of a hearing on 21 July 2014 to develop those submissions.

4    Ideally, I would have wished to have had more time to consider and reflect on these submissions. The imminence of the commencement of the trial has, however, made it necessary for there to be a speedy ruling on the respondents’ applications. As a result, these reasons are not as comprehensive as otherwise might have been the case.

5    The applicant has brought this proceeding naming the CFMEU and a number of its officers and a member as respondents. It alleges that they have each contravened ss 348 and 355 of the FW Act by taking or organising various forms of “action” with intent to coerce third parties. The relief sought by the applicant includes declarations, the imposition of pecuniary penalties and the payment of compensation to sub-contractors who were allegedly prejudiced by the impugned action.

6    The applicant’s case arises out of an industrial dispute between the CFMEU and Grocon Constructors (Victoria) Pty Ltd (“Grocon”). In the course of this dispute it is alleged that the CFMEU, acting through the individual respondents and other members, blockaded two building sites identified as “Myer” and “McNab” sites.

7    In August and September 2012 Grocon had filed summonses in the Supreme Court of Victoria (“the Supreme Court”) pursuant to Order 75.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), in which it sought orders that the CFMEU be punished for contempts of Court. The contempts, it was alleged, had arisen from disobedience of certain interlocutory injunctions which had been issued by the Supreme Court restraining various forms of conduct at the Myer and McNab sites.

8    The present proceeding was commenced on 5 October 2012. In applying for the various forms of relief which were sought the applicant relied on some of the same conduct which had given rise to the alleged contempts of court.

9    On 24 May 2013 the CFMEU was found to have committed the alleged contempts and, in March 2014, the Supreme Court made orders imposing monetary penalties on the CFMEU for those contempts. In doing so Cavanough J held that five of the contempts were contumacious and, for this reason, should be classified as criminal contempts: see Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 134 at [130], [134], [147] and [150]. His Honour’s orders recorded that, in each of the five instances, the CFMEU was adjudged to have been in criminal contempt of the court and had been “convicted and fined … for that criminal contempt.”

10    The CFMEU has appealed against Cavanough J’s orders and, I am told, that appeal is to be heard by the Victorian Court of Appeal commencing on 25 July 2014. One of the grounds of appeal being pursued by the CFMEU is that his Honour was in error in treating the relevant conduct of the CFMEU which led to the convictions as being criminal in nature.

11    The applicant does not oppose the CFMEU’s application for leave to amend its defence by pleading reliance on ss 552 and 553 of the FW Act. Leave will be granted.

12    It remains to deal with the applications to vacate the trial dates or, in the alternative, to stay the proceedings insofar as they seek pecuniary penalty orders.

13    These applications are both founded on the provisions of s 553 of the FW Act. That section provides that:

“(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.”

14    It was common ground that s 553 was intended to protect respondents from the need to defend themselves simultaneously against both criminal and civil penalty proceedings arising out of the same conduct and from standing in jeopardy of both criminal and civil penalties for the same or substantially the same conduct. The parties are, however, in dispute as to significant aspects of the construction and application of s 553.

15    For differing reasons, each contend that it is not necessary for the Court to resolve these competing contentions in order to rule on the applications.

16    The respondents relied on the existence of the dispute, coupled with the anticipated determination by the Court of Appeal about the proper characterisation of the proceeding before and convictions by Cavanough J, to support the granting of the application. Reliance was placed on the, by now well-known, provisions of the Federal Court of Australia Act 1976 (Cth) which require the Court’s powers to be exercised in accordance with the over-arching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible: see ss 37M, 37N and 37P. They argued that the incurring of costs would be avoided and efficiency promoted if the trial did not proceed until the Court of Appeal had passed on the proper characterisation of the contempt proceeding. If that Court determined that the proceeding was not criminal in nature the respondents would, necessarily, abandon reliance on s 553. Any ruling made by this Court on the interlocutory applications might themselves be subject to an application for leave to appeal in which case the trial would not be able to proceed, in any event, whilst such a leave application was heard and determined.

17    The applicant, on the other hand, submitted that it was not necessary for the Court to deal with the effect of s 553 prior to trial because the first stage of the trial would only deal with liability. The question of whether pecuniary penalties could be imposed on the respondents would only arise if and when they had been found to have contravened ss 348 and/or 355 of the FW Act following the first stage of the trial. The evidence which the applicant proposed to call in support of its claims for declaratory relief was the same evidence which would be used, in the event of a finding of liability, to support the imposition of pecuniary penalties.

18    The invitation extended by the parties is indeed tempting. This is particularly so given the absence of any direct authority on the meaning of s 553 and the limited time available within which to consider the competing constructional arguments. The temptation must, I have concluded, be resisted. This is because s 553 is open to the construction that it operates, of its own force, to either stay or dismiss this proceeding. If, in the present circumstances, the section so operates the hearing should not proceed or should do so on a limited basis.

19    In their written submissions the respondents contended that the Court should declare that the proceeding against the CFMEU, insofar as it is “for a penalty” stands stayed by operation of s 553. In oral submissions, however, emphasis shifted to the provisions of s 553(2) and it was contended that the appeal to the Court of Appeal was a “criminal proceeding” and that, if that Court held that the proceeding before Cavanough J was a criminal proceeding, s 553(2) would operate such that the present proceeding, or the proceeding to the extent that it sought the imposition of pecuniary penalties, stood dismissed.

20    It is first necessary to determine what is comprehended by the phrase the “[p]roceedings for pecuniary penalty order.” It is such proceedings which are stayed if the criteria prescribed by s 553(1) are satisfied. One possibility is that the proceedings being referred to are any proceedings in which pecuniary penalty orders are sought as one form of relief. This would mean that s 553(1) operated to stay the whole of any proceeding in which a pecuniary penalty is sought. Were such a construction to be adopted it would inevitably lead to multiple proceedings in many cases. There would be one proceeding in which the only relief claimed was the imposition of a pecuniary penalty and a second proceeding, based on the same factual foundation, claiming the other forms of relief sought by the moving party. Such duplicity would not be conducive to the cost effective and efficient conduct of litigation.

21    The alternative construction would stay the proceeding to the extent that a pecuniary penalty is being sought if the requirements of paragraphs (a) and (b) are satisfied. I regard this as the preferable construction. It is the construction which the respondents implicitly adopt in their written submissions and it accords with the approach taken by Jessup J to the construction of s 312 of the Fair Work (Registered Organisations) Act 2009 (Cth), a provision in substantially the same terms as s 553, in General Manager of the Fair Work Commission v Thomson [2013] FCA 380 at [7]-[11]. It avoids the undesirable consequences of a broader reading and is supported by the statutory context and the purpose served by the section. Paragraph (a) refers to “an offence” and paragraph (b) to “the offence”. In doing so they direct attention to a particular offence or offences in respect of which the criminal proceedings are brought. Section 553(2) fastens on the same offence or offences. If, following trial, the accused respondent is not convicted of the offence the proceedings under the FW Act may be resumed. If the accused respondent is convicted of the particular offence or offences the proceedings for a pecuniary penalty order stand dismissed. The structure of the section thus suggests the need for each alleged offence to be aligned with an identifiable contravention so that a determination of substantial correspondence of conduct can be made. In this way the necessary protection can be accorded to the accused respondent whilst preserving the right of the moving party in the FW Act proceeding to pursue pecuniary penalties and other remedies to which he or she asserts an entitlement under that Act.

22    The construction which I prefer gives rise to a further question. It accepts that, if an applicant seeks to rely on substantially the same conduct which has given rise to criminal proceedings for the purpose of obtaining a pecuniary penalty, the proceeding is, to that extent, stayed. The secondary question is whether that conduct may be relied on in the same proceeding, brought under the FW Act, to the extent that it is relied on for the purpose of obtaining another remedy or remedies. This question should be answered in the negative. In Thomson the General Manager sought compensation orders as well as pecuniary penalty orders in respect of the respondent’s impugned conduct. Jessup J, nonetheless, found that the proceeding was stayed to the extent that any relief was sought for contraventions constituted by the conduct which was common to the criminal and civil proceedings. It was able to continue in order to deal with alleged contraventions which were constituted by conduct which was not being relied on in the associated criminal proceeding.

23    In the present case such discrete conduct exists. It is conduct which occurred on days other than 28-31 August 2012 at the Myer site and 5 September at the McNab site. Notwithstanding the respondents’ assertion that the events which occurred on other days formed part of the same course of conduct, I would not, had it remained a live issue, been inclined to prevent the applicant, had he wished to do so, from proceeding to trial seeking pecuniary penalties for this conduct.

24    It is next necessary to determine whether the proceeding before Cavanough J and the pending appeal from his Honour’s orders constitute “criminal proceedings” within the meaning of s 553.

25    The respondents contended for a broad construction of the term. They submitted that it would be an error to limit its reach to proceedings commenced in any particular form under specified Commonwealth or State enactments. The term was broad enough to embrace both criminal trial proceedings and appeals from resulting convictions.

26    I have come to the firm view that the appeal proceeding in the Court of Appeal is not a “criminal proceeding” of the kind contemplated by s 553. When read together sub-sections (1) and (2) contemplate a first instance proceeding (that is, a trial) the outcome of which will either be a conviction or an acquittal. Once such proceedings are commenced by the filing of charges the proceedings under the FW Act for a pecuniary penalty are stayed and remain stayed until the criminal proceedings are concluded. The section does not attempt to deal with the impact of any appeal from a conviction on the entitlement of the applicant to pursue a claim for a pecuniary penalty for contravention of the FW Act. In this context I note that, elsewhere in the FW Act, the draftsman has specifically referred to appeals where it has been thought to be necessary to expand the reach of the word “proceeding”: see s 570(1).

27    The question remains as to whether the proceeding before Cavanough J was a “criminal proceeding”. If it was, the present proceeding was, to the extent that the same or substantially the same conduct was relied on in both proceedings, stayed by operation of s 553(1). Once the convictions had been recorded the effect of s 553(2) was that the proceeding, to the extent that it involved reliance on the same or substantially the same conduct stood dismissed by operation of s 553(2).

28    The proceeding had been brought in the civil jurisdiction of the Supreme Court pursuant to Order 75 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The orders made by Cavanough J on 31 March 2014 included the five convictions for criminal contempt on which the respondents rely. There were, in addition, findings that the CFMEU had committed two civil contempts, one of which occurred at the Myer site in April 2013. Fines were imposed in respect of these contempts.

29    Were the proceedings before Cavanough J “criminal proceedings”? The term is not defined in the FW Act. The characterisation of proceedings for contempt of court is attended with considerable uncertainty. The concept is subject to an internal distinction between civil and criminal contempts and, at a general level, has been treated as separate and distinct from main stream civil and criminal law.

30    It has long been recognised in this country that contempts of court may be classed as either civil or criminal contempts. In Witham v Holloway (1995) 183 CLR 525 at 530 the High Court plurality said that:

“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.”

In his judgment McHugh J (at 538-9) observed that civil and criminal contempt overlap and that “disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court’s order renders criminal what would otherwise be civil contempt.” Notwithstanding this distinction their Honours held that many of the differences upon which the distinction is based were “in significant respects, illusory.” (at 534). While not abandoning the distinction the Court held that all charges of contempt must be proved beyond reasonable doubt.

31    Whilst civil contempts do not give rise to an offence criminal contempts are treated as common law offences in respect of which a conviction may be recorded: see Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 497-498; Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314.

32    The procedural rules which govern the conduct of contempt proceedings differ throughout Australia. In some jurisdictions statutory provisions have a bearing on the classification of contempt as civil or criminal in nature and regulate the procedure to be adopted in prosecuting allegations of contempt: see Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113. In Victoria the Court of Appeal has held that charges of contempt are to be dealt with in accordance with the civil procedure rules subject to such modification as is necessary to avoid self-incrimination and to provide other protections afforded by criminal procedure: see Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378 at [10]-[11] (Beach JA with whom Osborn JA agreed).

33    As already noted the proceeding before Cavanough J was brought in the civil jurisdiction of the Court. This practice had been referred to by the High Court in Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 89. There the Court said that:

“Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.”

The Court also referred with approval to the decision of the Privy Council in Shamdasani v King-Emperor [1945] AC 264 at 270 where the Board drew a distinction between “an ordinary criminal case” and a criminal contempt.

34    The observation that criminal contempt proceedings stand apart from ordinary criminal cases has been repeated more recently in the High Court. In Witham, the plurality said (at 534) that “to say the proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge.” Similarly, in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 453, Gaudron, Gummow and Callinan JJ said that, while a contempt proceeding was “criminal in nature”, it was not “a criminal prosecution”.

35    The use of the word “offence” in this context has also been referred to in judgments. In Re Colina; ex parte Torney (1999) 200 CLR 386 at 428, for example, Hayne J said that:

“Although I accept that it is right to speak of an ‘offence’ of contempt, the use of that term should not be permitted to obscure the significant differences between the powers that are invoked against an alleged contemnor and those that are set in train under the criminal law.”

After quoting the passage from Hinch which is set out above at [33], his Honour continued:

“The power to punish for contempt is an inherent power of courts charged with ‘the function of superintending the administration of justice’. It is a power that is invoked sparingly but in a very wide variety of circumstances. There are, in that sense, many forms of contempt; there is no single ‘offence’ of the kind that the criminal law knows.”

A similar distinction was drawn by the Privy Council in Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 306 where their Lordships described the common law offence of criminal contempt as “an offence sui generis and … not part of the ordinary criminal law.”

36    That is not to say that proceedings for criminal contempt do not bear many of the same features as “ordinary” criminal proceedings. In Hinch (at 49) Deane J expressed the view that all proceedings for contempt “must realistically be seen as essentially criminal in nature.” In Witham the plurality drew attention to the fact that the penalties which may be imposed for criminal contempt are the same as those available for many mainstream criminal offences: see at 534. The standard of proof demanded of prosecutors in contempt cases, as had been seen, is the criminal standard.

37    The proceeding before Cavanough J was commenced by the filing of a statement of charges. Over 30 charges were preferred. They were not identified as either criminal or civil in nature. As was recognised in argument in this Court, it was not possible for any classification of the alleged contempts to be made with certainty prior to the publication of his Honour’s orders in March 2014. In his accompanying reasons he distinguished between conduct which was adjudged to constitute criminal contempt and that which he found to be civil contempt. The basis of discrimination between the two categories was whether or not the actors had acted in contumacious disregard of the relevant injunctions.

38    In my view there is force in the applicant’s contention that s 553 was not intended to operate in cases where contempt of court is alleged. It must be able to be determined with certainty that the respondent who claims the benefit of s 553 in proceedings for a pecuniary penalty under the FW Act is, contemporaneously, subject to criminal charges in a criminal proceeding. As the authorities make clear, whilst proceedings for civil and criminal contempts share many common features with “ordinary” criminal proceedings, they maintain differences which set them apart from the mainstream. Given the ambiguity which is inherent in the characterisation of proceedings for contempt “criminal proceeding” should not be construed as applying to a proceeding for such a sui generis “offence”.

39    For these reasons I do not consider that the provisions of s 553 preclude this matter proceeding to trial as scheduled on 6 August 2014.

40    It remains to consider whether there exist any other discretionary considerations which would individually or collectively support the making of an order vacating the trial date.

41    The trial dates were fixed in March 2014. The commencement date was that proposed by the respondents. The present applications were made by interlocutory application filed on 10 June 2014. This was over two months after Cavanough J had declared some of the contempts to be criminal in nature. This delay has not been explained. In any event, for the reasons which I have given in holding that s 553 does not have application, his Honour’s findings can have no bearing on the outcome of the present proceeding, whether or not that characterisation is upheld on appeal. Moreover, there is no risk of differential findings arising in this Court and the Victorian Court of Appeal.

42    The respondents sought to support a vacation of the trial dates by reference to a number of additional matters. Particular emphasis was placed on the recent service of a notice to admit by the applicant. In addition it was contended that the outcome of the contempt appeal “may radically affect conduct of the penalty proceeding” in certain ways. They were that:

    Preparation for trial would be affected;

    Disclosure of the case (including particularisation of the charges and specific sanctions and remedies sought) could be affected;

    Forensic decision-making would be affected;

    Pursuit of evidentiary disclosure would be affected;

    The assertion of privilege by non-corporate respondents could be affected; and

    The absence of prejudice to the applicant.

As can be seen many of these suggestions are tentative, and all are expounded at a very general level.

43    This proceeding has been awaiting trial for almost two years. If the trial dates are vacated there is little prospect of the trial commencing before the early part of next year. The lapse of time since the relevant events will inevitably have had some impact on the memories of witnesses. A further delay of six months or more will exacerbate this problem. Witnesses have been advised of the trial dates and have, presumably, ordered their affairs so as to be available. Counsel and solicitors on both sides have set aside the dates and, I assume, commenced preparation for the trial.

44    In these circumstances I consider that, on balance, a vacation of the trial dates is not warranted.

45    The respondents’ application for leave to amend their defence should be granted. Otherwise their interlocutory application should be refused.

Associate:

Dated:    24 July 2014