Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040

FEDERAL COURT OF AUSTRALIA

Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040

INDUSTRIAL LAW – contraventions of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) – amount of penalties to be imposed – relevant considerations – nature and extent of unlawful conduct – consequences of contravening conduct – previous similar unlawful conduct, including prior contraventions – relevance of previous contravention by another autonomous division of the Union – contraventions had common purpose but distinct in time, place and coercion exerted – relevance of, and weight to be given to, size and financial position and non-profit-making objective of Union – general and specific deterrence – totality principle COSTS – applicant partially successful in his pleaded case – respondents filed further amended defence on first day of trial – appropriate costs order – applicant entitled to part of his costs to reflect measure of success – respondents to pay applicant's costs thrown away by reason of amendment on party-party basis Building and Construction Industry Improvement Act 2005 (Cth) ss 3, 38, 43, 49 Crimes Act 1914 (Cth) s 4AA Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 referred to Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 referred to Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 cited Temple v Powell (2008) 173 IR 189 discussed Alfred v Walter Construction Group Pty Ltd [2005] FCA 497 referred to R v McInerney (1986) 42 SASR 111 referred to Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 discussed A & L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 cited Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 cited Mill v The Queen (1988) 166 CLR 59 referred to Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517 cited Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 cited Duffy v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 299 cited BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 cited Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236 referred to Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 cited Pine v Casello Constructions Pty Ltd [2005] FCA 1854 cited Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 cited Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 cited Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 cited Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 cited Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd [2001] ATPR 41-815 cited Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 referred to Cretazzo v Lombardi (1975) 13 SASR 4 cited Australian Trade Commission v Disktravel [2000] FCA 62 referred to Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 cited