Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 CONTEMPT OF COURT - appellant found guilty of contempt of court - penalty reduced following appeal to Full Court - appeal from judgment on assessment of penalty - factors not taken into account by primary judge - partial compliance with court order - conduct of officials at union meeting - rationale for exercise of contempt power - nature of contempt by respondent - delay in giving effect to court order - impediment to proper administration of justice - contempt by representative body - whether primary judge erred in assessment of penalty - whether appellant's compliance in Queensland should have been taken into account - whether conduct of union officials should have been considered when assessing penalty COSTS - indemnity costs awarded against appellant by primary judge - costs order not taken into account by primary judge when fixing penalty imposed - discretion to award indemnity costs in contempt proceedings - public nature of appellant's contempt - whether primary judge erred in not considering indemnity costs awarded when assessing penalty imposed

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 cited Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 cited Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991) cited Re Wilcox; Ex parte Venture Industries Pty Ltd (2) (1996) 72 FCR 151 cited McIntyre v Perkes (1988) 15 NSWLR 417 referred to Adlam v Noack [1999] FCA 1606 referred to LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213 cited Perkes v Landon (1988) 15 NSWLR 408 cited Plating Company v Farquharson (1881) 17 Ch 49 referred to Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 cited Attorney-General; ex rel Leyton (Essex) Urban District Council v Walthamstow Urban District Council (1895) 11 TLR 533 cited Rex v Ogilvie (1928) 23 Tas LR 69 at 76 referred to GCT Management Ltd v The Laurie Marsh Group Ltd [1973] 14 RPC 432 referred to Michigan v Mathew [1966] 3 RPC 47 cited Marron v Salvemini; Re Scardigno [1969] WAR 178 cited Sunibrite Products (Aust) Pty Ltd v Jabuna Pty Ltd (1980) 47 FLR 73 referred to Brambles Holdings Ltd v Trade Practices Commission (1980) 32 ALR 328 referred to Australian Competition and Consumer Commission v Australian Business Reports Pty Ltd (1997) 19 ATPR 41-577 referred to Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Limited [2002] FCA 1758 discussed Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98 followed Witham v Holloway (1995) 183 CLR 525 referred to House v the King (1936) 55 CLR 499 referred to Shott AG Australian Supplement to Borrie & Lowe's Law of Contempt, (2nd ed) Lowe & Sufrin Borrie & Lowe's Law of Contempt, 3rd ed., 1996 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP STEEL (AIS) PTY LTD ACN 000 019 625 Q 100 OF 2002 MOORE, TAMBERLIN AND GOLDBERG JJ SYDNEY 21 FEBRUARY 2003