In brief

  • On Friday 24 October 2014, the Supreme Court of Appeal handed down its decision in relation to the appeals brought by Construction, Forestry, Mining and Energy Union (CFMEU) in the Grocon contempt proceedings, and the Boral contempt proceedings.
  • In the Grocon contempt proceedings, the Court of Appeal upheld Justice Cavanough’s findings at first instance that contempt charges in relation to the CFMEU’s unlawful picketing activities in late 2012 were classified as criminal contempt (translating into formal criminal convictions). The CFMEU was fined $1.15 million in relation to these criminal charges.
  • In the Boral contempt proceedings, Boral alleged that the CFMEU committed contempt of court by breaching court orders restraining it from blocking a building site. The Court of Appeal dismissed the CFMEU’s appeal, after it sought to appeal an order made by the Supreme Court that it make discovery of certain documents. The CFMEU argued that it could not be required to give discovery in contempt proceedings. This argument was rejected by the Court of Appeal and the CFMEU will now be required to discover those documents.

Grocon contempt proceedings

On Friday 24 October 2014, the Victorian Court of Appeal dismissed two appeals in the Grocon contempt proceedings and Boral contempt proceedings, brought by the CFMEU.1

In the Grocon contempt proceeding, the contempt charges relate to the well-publicised blockade that took place at Grocon’s Emporium and McNab construction sites in August and September 2012. CFMEU’s criminal appeal challenged Justice Cavanough’s findings at first instance that:

  1. the CFMEU was liable in criminal contempt for its unlawful picketing activities in August and September 2012, and
  2. the $1.15 million in penalties imposed for the criminal contempt.

There were four main questions addressed by the Court of Appeal in the Grocon contempt proceedings:

1. Could the CFMEU be convicted of criminal contempt if Grocon’s statement of charge did not specifically allege that its conduct had been contumacious?

Answer:   Yes.

The CFMEU submitted that it was not open to Justice Cavanough to make findings of criminal contempt in circumstances where Grocon had not specifically pleaded in the statement of charge that the contempt charges were contumacious (that is, that the contempt charges amount to a peverse and obstinant resistance to authority).

The Court of Appeal confirmed that there is no requirement to specifically plead in the statement of charge the criminal nature of a contempt in order for there to be a finding of criminal contempt. The Court considered it was enough that the CFMEU had been put on notice that it was alleged that its breach of orders had been contumacious because:

  1. Counsel for the CFMEU had expressly acknowledged from the outset his understanding that the charges brought were for criminal contempt, and that Grocon would seek both the recording of convictions and other punishment, and
  2. there was no doubt that the CFMEU was aware from the commencement of the proceeding that it was exposed to that risk and understood the potential consequence of a finding of criminal contempt and conviction.

Accordingly, the Court of Appeal found that the CFMEU could not assert that it was denied procedural fairness.2

2. Were the Grocon employees 'engaged to work' at the Emporium site if they were redeployed to other sites?

Answer:   Yes.

The CFMEU submitted that Justice Cavanough erred in reaching the conclusion that the CFMEU had in fact engaged in the conduct particularised in the contempt charges – that is, the Grocon employees were not “engaged to work” on the Emporium site because they were redeployed to other sites during the blockade.

The Court of Appeal did not grant the CFMEU leave to appeal in relation to this ground. The Court of Appeal held that, although contempt charges must be strictly construed, that 'does not mean… that a court must strain to give charges a meaning which they will not sensibly bear in order to facilitate the defence of an alleged contemnor.'3 In other words, 'persons engaged to work on the Emporium site on that day' had a clear meaning – referring to those persons who would in the ordinary course of their employment, have worked on the site that day. This did not change merely because the employees were redeployed to other sites as a result of the blockades. The Court of Appeal considered that the conduct of the CFMEU on 28 August 2012 and the threatened continuation of that conduct on succeeding days sensibly permitted Grocon management to infer that the employees would face the same problem of attempting to gain access on 29 and 30 August 2012 that they had faced on 28 August.4

3. Was there evidence capable of establishing breaching conduct at the McNab site on 5 September to a criminal standard?

Answer:   Yes.

The CFMEU sought to argue that the evidence before the Supreme Court was insufficient to support Justice Cavanough’s findings that the CFMEU obstructed a truck near the McNab site on 5 September 2012.

The Court of Appeal refused leave to appeal on this ground, and found that it was an inevitable conclusion that the crowd’s attendance near the McNab site was procured by the CFMEU.5

4. Were the quantum of fines of $1.15 million against the CFMEU in the Grocon proceedings disproportionately heavy?

Answer:   No. 

The CFMEU also sought to reduce the quantum of the fines imposed against them on the basis that they were disproportionately heavy. Again, the Court of Appeal refused leave to appeal on this basis.

Boral contempt proceedings

In the Boral contempt proceeding, the CFMEU had been ordered to make discovery of a limited number of documents. These included business cards issued by the CFMEU for use by specific CFMEU officials, or documents recording the mobile telephone numbers of these individuals, and documents confirming the basis or terms pursuant to which the CFMEU had employed a CFMEU official in May 2013.

The CFMEU challenged the Supreme Court’s decision to make discovery, alleging that it could not be required to give discovery as contempt proceedings are 'criminal' and 'accusatorial' in nature. The Court of Appeal rejected the CFMEU’s submissions and held that the trial judge had correctly concluded that discovery could be ordered.

Next stages

Justice Cavanough’s decision in the Grocon contempt proceedings represented the first time in history that a union has been convicted of criminal contempt in Australia. The Court of Appeal’s judgment confirms that the CFMEU’s criminal convictions will stand (unless the CFMEU seeks leave to appeal the decision to the High Court), as well as the fines imposed against it of $1.25 million for the civil and criminal contempts.

The Court of Appeal will now determine whether costs will be awarded to Boral and Grocon in relation to the appeals in the coming weeks, following submissions from the parties.