Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105 File number: SAD 58 of 2015

Judge: CHARLESWORTH J

Date of judgment: 27 July 2018

Catchwords: INDUSTRIAL LAW – imposition of civil penalties for contraventions of s 500 of the Fair Work Act 2009 (Cth) – assessment of seriousness of contraventions – little or no significant economic consequences resulting from contravening conduct – contraventions deliberate – contravening conduct accompanied by defiant or mental attitude – no evidence of contrition or correction – pressing need for general deterrence COSTS – whether order for costs against applicant justified under s 570 of the Fair Work Act 2009 (Cth) – whether proceedings commenced or continued against a respondent vexatiously or without reasonable cause – whether an unreasonable act or omission caused the respondent to incur costs

Legislation: Crimes Act 1914 (Cth) s 4AA Fair Work Act 2009 (Cth) ss 355, 480, 484, 486, 487, 500, 512, 539, 546, 550, 570, 793

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Another [2018] HCA 3, (2018) 351 ALR 190 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (ACN 003 274 655) [2016] FCAFC 181, (2016) 340 ALR 25 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Baker v Patrick Projects Pty Ltd (No 2) (2014) 145 ALD 548 Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 Director, Fair Work Building Industry Inspectorate v Bolton (No 2) [2016] FCA 817, (2016) 261 IR 452 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Director of Fair Work Building Inspectorate v Stephenson and others (SAD 138 of 2014) (2014) 146 ALD 75 Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and another (2014) 140 ALD 337 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414 Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 Director of the Fair Work Building Industry Inspectorate v O'Connor [2016] FCA 415 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1997) 71 FCR 285 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482