FEDERAL COURT OF AUSTRALIA White v Construction Forestry Mining and Energy Union [2010] FCA 835 Citation: White v Construction Forestry Mining and Energy Union [2010] FCA 835 Parties: MICHELLE WHITE v CONSTRUCTION FORESTRY MINING AND ENERGY UNION, RALPH EDWARDS, ROBERT GRAAUWMANS, MAURIE HILL, STEPHEN LONG, BRENDAN MURPHY, MICHAEL POWELL, SHAUN REARDON, GARETH STEPHENSON and ALEX TADIC File number: VID 698 of 2009 Judge: KENNY J Date of judgment: 9 August 2010 Catchwords: INDUSTRIAL LAW – Strike-out motion based on double jeopardy principle and abuse of process – allegation of contraventions of different statutory provisions based on same conduct – motion dismissed INDUSTRIAL LAW – Construction of Building and Construction Industry Improvement Act 2005 (Cth) s 43(1) Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 43(1) Cases cited: Pearce v R (1998) 194 CLR 610 Island Maritime Limited v Filpowski (2006) 226 CLR 328 Stuart v CFMEU [2010] FCAFC 65 Date of hearing: 9 August 2010 Date of last submissions: 9 August 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr P O'Grady Solicitor for the Applicant: Minter Ellison Counsel for the Respondents: Mr H Borenstein SC and Mr C W Dowling Solicitor for the Respondents: Construction, Forestry, Mining and Energy Union IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 698 of 2009 BETWEEN: MICHELLE WHITE Applicant AND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION First Respondent RALPH EDWARDS Second Respondent ROBERT GRAAUWMANS Third Respondent MAURIE HILL Fourth Respondent STEPHEN LONG Fifth Respondent BRENDAN MURPHY Sixth Respondent MICHAEL POWELL Seventh Respondent SHAUN REARDON Eighth Respondent GARETH STEPHENSON Ninth Respondent ALEX TADIC Tenth Respondent JUDGE: KENNY J DATE OF ORDER: 9 AUGUST 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondents be given leave to file and serve the amended notice of motion in the form of the notice filed in court today. 2. The respondents' notice of motion as amended be dismissed. 3. The first respondent pay the applicant's costs of and associated with the respondents' motion, including the costs of the original motion, notice of which is dated 28 May 2010. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 698 of 2009 BETWEEN: MICHELLE WHITE Applicant AND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION First Respondent RALPH EDWARDS Second Respondent ROBERT GRAAUWMANS Third Respondent MAURIE HILL Fourth Respondent STEPHEN LONG Fifth Respondent BRENDAN MURPHY Sixth Respondent MICHAEL POWELL Seventh Respondent SHAUN REARDON Eighth Respondent GARETH STEPHENSON Ninth Respondent ALEX TADIC Tenth Respondent JUDGE: KENNY J DATE: 9 AUGUST 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 23 September 2009, the applicant, Ms Michelle White, filed an application and statement of claim, naming the Construction, Forestry, Mining and Energy Union ('the CFMEU') and nine of its officers (Mr Ralph Edwards, Mr Robert Graauwans, Mr Maurie Hill, Mr Stephen Long, Mr Brendan Murphy, Mr Michael Powell, Mr Shaun Reardon, Mr Gareth Stephenson and Mr Alex Tadic) as respondents. By her application, Ms White seeks declarations and penalties under s 49(1) of the Building and Construction Industry Improvement Act 2005 (Cth) ('the BCII Act'), in relation to various alleged violations of ss 38, 43(1)(a) and 43(1)(c) of the Act on 16 and 28 May 2008 by the individual respondents and by CFMEU members, as set forth in the statement of claim. 2 By their amended notice of motion filed on 5 August 2010, the respondents seek orders that certain paragraphs of the statement of claim be struck out, or that certain claims for relief in the application be dismissed or stayed. In written submissions, the respondents argue that they are entitled to this relief because the conduct underlying the s 38 allegations and the s 43(1)(a) and (c) allegations is the same. The respondents contend that the allegations therefore "offend[ ] the principles of double jeopardy" and are "unsustainable as a matter of law", and that they should be struck out and the corresponding claims for relief dismissed or stayed. In oral submissions today, senior counsel for the respondent put the argument a little differently, saying that the elements of the s 38 contraventions (as alleged in the statement of claim) were included in the elements of the s 43 contraventions (as alleged in the statement of claim). As a consequence, so he argued, the applicant's claims relevantly offended the principle against double jeopardy or, for much the same reason, constituted an abuse of process. 3 Counsel for the applicant – the respondent on the motion – contended that the respondents misconceived the double jeopardy principle and that the claims against the respondents neither offended that principle nor constituted an abuse of process. 4 Because the elements of ss 38 and 43(1) are different, there is no double jeopardy problem at this stage of the case: Pearce v R (1998) 194 CLR 610 ('Pearce') at 616-620 [17]-[28] per McHugh, Hayne and Callinan JJ with whom Gummow J agreed, at 628 [63]; see also 652 [125] per Kirby J. Nor is it correct to say, as the respondents do, that all the elements of a s 38 contravention are wholly included in a contravention of s 43(1)(a) or (c): see Pearce at 618 [24] and also Island Maritime Limited v Filpowski (2006) 226 CLR 328 at 338 [25]-340 [30] per Gleeson CJ, Heydon and Crennan JJ and 345-6 [49]-[50] per Gummow and Hayne JJ. The respondents' argument, which placed heavy reliance on the statement of claim, confused the alleged contravening conduct with the legislatively separate and distinct elements of s 38 (when read with ss 37 and 36) and s 43(1)(a) and (c). Similarly, the applicant properly may allege separate violations of ss 43(1)(a) (which requires an intent to coerce with regard to the employment of building employees) and 43(1)(c) (which requires an intent to coerce with regard to the allocation of particular responsibilities to building employees or building contractors) based on the same underlying conduct. Whether the respondents' conduct falls under s 43(1)(a) and/or s 43(1)(c) (if it falls within s 43(1) at all) will depend on the proper construction of s 43(1) and the evidence of intent adduced at trial. 5 For the same reasons, there is no abuse of process which would require that any of the applicant's claims for relief be stayed or dismissed: see Pearce at 620-21 [29]-[33] per McHugh, Hayne and Callinan JJ), 629 [67] per Gummow J, 653 [128] per Kirby J. Indeed, it is usual for prosecuting authorities to "seek to ensure that all offences that are to be tried as arising out of one event or series of events are preferred and dealt with at the one time": Pearce at 620 [30]. If the respondents are found to have committed multiple contraventions based on the same course of conduct, that circumstance must be considered at the sentencing stage to ensure that the respondents are not punished twice for the same actions: compare Stuart v CFMEU [2010] FCAFC 65 at [82] per Besanko and Gordon JJ. 6 At the hearing today, the respondents advanced a separate argument about the construction of s 43(1). This was that there could only be one contravention of the provision where a person took the one action, with intent to coerce another, even though for more than one of the purposes identified in paragraphs (a) to (d) of s 43(1). The applicant contested this proposition. 7 A straightforward reading of s 43(1) does not support the respondents' construction. Read in this way, s 43(1) prohibits a person from taking action, with intent to coerce another person to do any of the things in (a) to (d). If a person takes action intentionally to coerce a person to do any one of the things mentioned in these paragraphs, then the provision is contravened. The language of s 43(1)(a) to (d) indicates that each of the purposes in paragraphs (a) to (d) is separate and distinct from the others. This is the effect of the use of the word "or" at the end of paragraphs (a), (b) and (c) and the use of the word "or" within each of the four paragraphs themselves (as in "or not to employ" in paragraph (a)). The result is that read in this straightforward fashion each of the purposes is an element of a separate possible contravention. A contravention will be established when action taken with intent to coerce is shown to have been taken for any one of the purposes in paragraphs (a) to (d); and if action with coercive intent is taken for a purpose in paragraph (a) and a purpose in paragraph (c), then there will be two separate contraventions. 8 I would emphasize, however, that at the hearing today the Court was not taken to any authority or other material that would indicate that Parliament intended other than this straightforward reading. The respondents emphasized that unfairness could result from such a construction. There are three answers to this. First, any element of "double punishment" can be taken into account at the penalty stage, a fact that Parliament can be taken to have known. Second, in the absence of factual context, the element of unfairness might be thought to be more imagined than real. For example, it may be that in the circumstances postulated by the respondents – where one allegedly contravening purpose was merely incidental to the governing contravening purpose – only one contravention would be established. Third, this highlights the desirability of construing the provision when the factual complexion of the case is known. At this interlocutory hearing, I would not therefore make any definitive ruling as to the proper construction of s 43(1). Argument today on the question was necessarily limited, and the parties may develop more complete argument at trial, when the question for construction is more clearly defined by virtue of its factual context. 9 For the reasons stated, I would dismiss the respondents' motion today. The first respondent should pay the applicant's costs of the motion. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 9 August 2010