Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184 Appeal from: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436

File number: VID 584 of 2016

Judges: ALLSOP CJ, NORTH AND JESSUP JJ

Date of judgment: 21 December 2016

Catchwords: STATUTORY INTERPRETATION – Remedies for contravention of statutory prohibitions – Civil proceeding for penalty – Maximum penalties prescribed – Additional power to make any order considered appropriate – Whether power to order another person not to indemnify respondent against his or her liability to pay penalty. INDUSTRIAL LAW – Penalty for contravention of statutory prohibition – Whether court has power to order another person not to indemnify respondent against his or her liability to pay penalty. PRACTICE AND PROCEDURE – Natural justice – Financial report of respondent tendered for limited purposes including demonstration of its asset base and revenue – Whether report could be used for another purpose not stated at trial – Whether respondent denied natural justice by extended use of report without warning. PRACTICE AND PROCEDURE – Natural justice – In fixing penalty for contravention of statute, whether primary judge entitled to infer, from previous proceedings, the existence of a "strategy" by respondent to conduct litigation in a certain way – Whether respondent entitled to be warned of the possibility of such an inference. PRACTICE AND PROCEDURE – Determination of penalties – Whether primary judge's discretion miscarried.