Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29 Citation: McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29
Appeal from: Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977
Parties: JOSEPH MCDONALD and THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
File number: WAD 283 of 2010
Judges: NORTH, MCKERRACHER, JAGOT JJ
Date of judgment: 8 March 2011
Catchwords: INDUSTRIAL LAW – imposition of pecuniary penalties in relation to contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) – whether primary judge failed to take any or any proper account of motive for and seriousness of contravening conduct – whether primary judge erred by imposing penalties calculated as a percentage of the maximum – whether penalty when considered as a percentage of the maximum took account of circumstances of contravention – whether primary judge failed to take account of appellants' relative degrees of responsibility – whether primary judge erred in failing to suspend penalty due to seriousness of contravening conduct – whether penalties manifestly excessive
Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Cases cited: Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 IR 373 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 IR 462 Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195 House v The King (1936) 55 CLR 499 Hudson v The Queen [2010] VSCA 332 Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 Lowe v The Queen (1984) 154 CLR 606 ; [1984] HCA 46 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610 Temple v Powell (2008) 169 FCR 169
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