IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE COMMON LAW DIVISION No. SCI 2012 4743
BETWEEN
GROCON CONSTRUCTORS (VICTORIA) PTY LTD Plaintiffs (ABN 98 148 006 624) & ORS and
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS Defendants (which is sued on its own behalf and pursuant to Order 18 of the Supreme Court (General Civil Procedure) Rules 2005 as representing: a) all persons who were on 17 August 2012 or are now, or have at any time since 17 August 2012 been present at the picket lines at the premises of McNab Avenue, Footscray, in the State of Victoria; b) all persons who were on 22 August 2012 or are now, or have at any time since 22 August 2012 been present at the picket lines at the premises of the Emporium construction site between Little Bourke St and Lonsdale Street, Melbourne, in the State of Victoria)
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JUDGE : CAVANOUGH J WHERE HELD : Melbourne DATES OF HEARING : 3, 4, 5, 13, 20, 26, 27 and 28 September, 18 and 19 October 2012 DATE OF JUDGMENT: 24 May 2013 CASE MAY BE CITED AS : Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors MEDIUM NEUTRAL CITATION : [2013] VSC 275
--- Contempt of Court – Alleged breach of temporary restraining orders – Meaning of orders and charges – Whether “free access” to building sites prevented, hindered or interfered with by large static groups of people – Whether defendant industrial association caused or procured the attendance or conduct of the groups of people – Charges established beyond reasonable doubt – Findings of contempt made – Supreme Court (General Civil Procedure) Rules 2005 , Order 75
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APPEARANCES : Counsel Solicitors
For the first to third plaintiffs Mr M McDonald SC, Mr P M Herbert Smith Freehills O’Grady, Mr P Wheelahan
For the fourth plaintiff Mr S Wood SC, Mr J Snaden, Victorian Government Mr B Jellis Solicitor’s Office
For the first defendant Mr P Morrissey SC, Ms R Shan Slater and Gordon
HIS HONOUR
Introduction and overview
1 Before the Court are 30 charges 1 of alleged contempt of court against the first
defendant, the Construction, Forestry, Mining and Energy Union (“the CFMEU”), which is an organisation registered under the Fair Work (Registration of Organisations)
Act 2009 (Cth) (“the FW(RO) Act”). In essence, it is alleged that on 28, 29, 30 and 31 August 2012 and on 5 September 2012 the CFMEU breached one or other of certain
temporary restraining orders made by this Court on 21, 22 and 28 August 2012. Notwithstanding that in the underlying proceeding the CFMEU is sued in a
representative capacity as well as on its own behalf and notwithstanding that there
are additional defendants in the underlying proceeding, the contempt charges are brought against the CFMEU alone and in its own right, not in any representative capacity.
2 The temporary restraining orders were obtained in the underlying proceeding by the first, second and third plaintiffs (collectively, “Grocon”), which are companies within the larger Grocon group of companies. The Grocon group is in the business of large scale commercial building and construction. Relevantly, the orders in question restrained the CFMEU from “preventing, hindering or interfering with free access to, and free egress from,” certain Grocon building sites by any person or vehicle; and from “causing, inducing, procuring or inciting any person to do or attempt to do” any of the things which the CFMEU was restrained from doing.
3 The contempt charges are brought by way of two applications. Each application was commenced by Grocon, by summons filed under rule 75.06 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Supreme Court Rules”). The first application was commenced by a further amended summons filed on 30 August 2012. The second application was commenced by a summons filed on 7 September 2012. The Attorney-General for the State of Victoria has been joined as a fourth
1 Strictly speaking, there are 33 charges, but three of them are not pressed. See below. SC: 1 JUDGMENT
plaintiff in each of the two contempt applications. He is not otherwise a party to the underlying proceeding. Hereafter a reference to “the applicants” is a reference to
Grocon and to the Attorney-General together as the moving parties in the contempt applications. Ultimately the two applications were heard together.
4 The first application comprises six charges, each relating exclusively to incidents said
to have occurred in the vicinity of a Grocon building site known as the “Emporium” site in the Melbourne central business district on 28 August 2012. The second
application originally comprised 27 charges. Eighteen of them – six per day – related to events at the Emporium site on 29, 30 and 31 August 2012 respectively. The other
nine charges related to events near a Grocon site known as the McNab site in Footscray on 5 September 2012. Each of the building sites was covered by a temporary restraining order. In the end, three of the nine McNab site charges have not been pressed. 2
5 As to the Emporium site, the applicants say in substance that large crowds of people, including several named officials of the CFMEU, gathered at the Emporium site on
each of 28 , 29, 30 and 31 August 2012; that, despite police involvement on 28 and 31 August 2012, the crowds blocked or restricted access by persons to the Emporium site on each of those four days; that the CFMEU caused the crowds to gather for this purpose and/or directed the actions of the crowds after they had gathered; and that the CFMEU thereby breached the orders.
6 Notwithstanding that from time to time the applicants have described what happened at the Emporium site as a “blockade” (a description denied by the CFMEU), the charges actually laid in relation to the site are limited to charges of preventing (etc) free access to the site on the part of “persons” as distinct from “vehicles”. In the particulars stated under each such charge, it is alleged that the CFMEU prevented etc free access to the site “by persons engaged to work on the
2 The charges not pressed are those numbered 19, 20 and 21 in the summons filed on 7 September 2012. The six remaining charges concerning the McNab site relate only to access by vehicles, as distinct from access by persons on foot, to the site. SC: 2 JUDGMENT
Emporium site on that day”. There is no charge of preventing (etc) free access to the Emporium site by vehicles.
7 As for the McNab site, the applicants say in substance that on two separate occasions
on the morning of 5 September 2012 two named officials of the CFMEU together with other persons proximate to the McNab site blocked or restricted the passage of
a semi-trailer, alleged to be the same semi-trailer on both occasions, that was attempting to make a delivery to the site; and that the CFMEU thereby breached the relevant order on each occasion.
8 It is common ground that, in general terms, the elements of a civil contempt, ie a contempt constituted by breach of a court order, are as follows: 3
(a) that an order was made by the court;
(b) that the terms of the order are clear, unambiguous and capable of compliance;
(c) that the order was served on the alleged contemnor or that service was excused in the circumstances or dispensed with pursuant to the Rules of Court;
(d) that the alleged contemnor has knowledge of the terms of the order;
(e) that the alleged contemnor has breached the terms of the order.
9 The first, third and fourth elements are not in dispute.
10 The CFMEU says that the second element is not in dispute either “so long as the plain and unambiguous sense of the Orders’ terms is adopted”. 4 The CFMEU submits that the orders aim at actual prevention, hindering and interference with free access “as pleaded, in a concrete situation (and at procuring, causing or inciting such prevention)”. 5 It submits that neither the orders nor the charges should be read
3 See Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31]; Scott v Evia Pty Ltd [2007] VSC 15 [36]; Deputy Commissioner for Taxation v Gashi (No 2) [2011] VSC 351 [18]. 4 CFMEU’s written closing submissions dated 15 October 2012, para 1.3. 5 Ibid, loc. cit. SC: 3 JUDGMENT
in a ‘draconian’ way. So far as the Emporium site in particular is concerned, it submits that the orders did not forbid mere presence and protest by the CFMEU nor
require the CFMEU to furnish “in the abstract”, a clear path to the site. 6 It submits that “free access” does not mean access without any encumbrance at all. The
applicants say that these submissions are misconceived.
11 The fifth element (breach) is in dispute. The CFMEU denies that the applicants have proven, beyond reasonable doubt, any of the charges actually laid. It says that each
charge should be considered discretely. As to the Emporium site, the CFMEU says that the applicants have not proven beyond reasonable doubt that free access to the
site by persons engaged to work at the site on the relevant days was prevented, hindered or interfered with (within the meaning of the orders and the charges) by the crowds. In that regard, the CFMEU contends that no specific request for access to the site was made on any of the days in question, whether by Grocon or by anybody else. Further, the CFMEU says that there were several entrances to the site which were available but which Grocon workers did not use. In relation to Wednesday 29 and Thursday 30 August 2012 in particular, the CFMEU points to evidence that the Grocon workers had been redeployed to other sites on the previous evening on each occasion, and it argues that, therefore, there were no persons “engaged to work on the Emporium site” (within the meaning of the relevant charges) on either of those days. As to Friday 31 August 2012, the CFMEU points out that some Grocon workers did in fact enter the site on that day. More generally, the CFMEU denies that the applicants have proven that the people in the crowds were assembled by, or were under the control or direction of, the CFMEU.
12 As to the McNab site, the CFMEU does not admit that it was the same semi-trailer on both occasions and, in any event, it contends that the evidence does not establish beyond reasonable doubt that access to the site by the semi-trailer or semi-trailers was prevented, hindered or interfered with (within the meaning of the orders and
6 Ibid, para 1.4. SC: 4 JUDGMENT
the charges) by the CFMEU. Among other things, the CFMEU says that the evidence does not show why the semi-trailer or semi-trailers did not proceed to the site.
13 Although this is in form a civil proceeding, safeguards similar to those appropriate
in criminal proceedings apply. 7 Thus, as the applicants accept, the onus of proving a charge of contempt of court falls on the moving party, and such a charge must be
proven beyond reasonable doubt. 8 On the other hand, the distinction between civil and criminal contempt has not been entirely abolished and not all features of a
criminal trial or of criminal procedure are applicable. 9 An obvious example is that allegations of contempt of this Court are not prosecuted before juries but rather are
brought by way of the summary procedure provided for in Order 75 of Chapter I of the Supreme Court Rules. Generally speaking, Chapter I relates to civil, not criminal, procedure.
14 In my view, the two fundamental issues in this case are whether the persons in question obstructed access to the building sites on the days in question, and whether the CFMEU deliberately caused them to do so. For reasons I will explain, I am satisfied beyond reasonable doubt that the answer in both cases is yes. I am satisfied beyond reasonable doubt that all of the 30 (remaining) charges have been made out. However, there is a great deal of overlap between them. The applicants acknowledge that many of the 30 charges are in the nature of alternatives. They submit that, in the end, there should be 10 separate findings of contempt. In my view, having regard to the substance of the matter, only one finding of contempt per day is warranted. That yields a total of 5 findings of contempt. The applicants accept that any question of penalty must be deferred for further hearing and determination.
7 Doyle v Commonwealth (1985) 156 CLR 510, 516. See also and compare Briggs v Lunt (No 4) [2011] WASCA 145 [34]-[45]. 8 Witham v Holloway (1995) 183 CLR 525; Sigalla v TZ [2011] NSWCA 334 [25]-]28]. 9 See Hearne v Street (2008) 235 CLR 125, 131; Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 [37]-[67] (Tobias JA), [154] (Basten JA), [194]-[199] (Campbell JA); Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [63]-[104] (Beazley JA), [137] (McColl JA), [140], [166]-[174] (Lindgren AJA); cf Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117, 142-143 (Brooking JA); 172-173 (J.D. Phillips JA). SC: 5 JUDGMENT
The procedural history and the restraining orders
15 On the afternoon of Friday 17 August 2012 counsel for Grocon made an oral
application in the Practice Court (where I was sitting) for temporary injunctive relief against the CFMEU in relation to what was said to be an obstructive picket at the
McNab site. Grocon’s solicitors had previously given a short period of informal notice to the CFMEU, but the union did not appear and the matter proceeded as an
urgent ex parte application. Grocon proffered several undertakings, including an undertaking that, by the following Monday morning, Grocon would commence an
appropriate proceeding by writ and would file a summons seeking interlocutory relief returnable on Tuesday 21 August 2012 in the Practice Court. Having accepted
Grocon’s undertakings, I made an order that until 4.15 pm on Tuesday 21 August 2012 or further order, the CFMEU be restraining from “preventing, hindering or interfering with free access to, and free egress from, [the McNab site] by any person or vehicle” and from “causing, inducing, procuring or inciting any person to do or attempt to do [any of those things]”.
16 In accordance with their undertaking, Grocon caused a writ and a summons to be issued. The writ commenced the underlying proceeding in which the present contempt applications were later made.
17 The summons for interlocutory relief was called on in the Practice Court on Tuesday 21 August 2012 before her Honour the Chief Justice. Despite prior notice, there was no appearance for the CFMEU. Her Honour made an order that service of documents in the proceeding on the National Office of the CFMEU in West Melbourne would be good and sufficient service on the CFMEU.
18 Her Honour made a further order in the following terms (so far as relevant):
2. Until the trial of this proceeding or further order, the Construction, Forestry, Mining and Energy Union (whether by itself, its officers, servants, agents or howsoever otherwise) is restrained from:
(a) preventing, hindering or interfering with free access to, and free egress from, the building site occupied by each of the First Plaintiff or Second Plaintiff located at McNab Avenue, Footscray in the State of Victoria ( McNab site ) by any person or vehicle; SC: 6 JUDGMENT
(b) …
(c) causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 2(a)-(b) of this order.
19 As authenticated, the order contained a penal notice addressed to the CFMEU, being a notice warning that, among other things, the CFMEU was liable to sequestration of
property if it disobeyed the order.
20 On 22 August 2012 Grocon applied to the Chief Justice, again on notice to the
CFMEU, for further and wider restraining orders. On this occasion Grocon alleged that there was an obstructive picket at the Emporium site. Grocon also sought
orders in respect of two additional building sites, known as “the 150 Collins Street site” and “the VCCC site” respectively. Again the CFMEU did not appear. Among other orders, the Chief Justice made interim restraining orders in relation to the Emporium site, the 150 Collins Street site and the VCCC site. (As indicated above, an interlocutory restraining order in relation to the McNab site had already been made on 21 August 2012). Relevant parts of the Chief Justice’s order of 22 August 2012 referred to “the picket line” at the Emporium site. So far as directly relevant, paragraph 3 of the authenticated order was in the following terms:
3. Until 4.15 pm on 28 August 2012, the Construction, Forestry, Mining and Energy Union (whether by itself, its officers, servants, agents or howsoever or otherwise) and all persons who were on 22 August 2012 or are now, or have at any time since 22 August 2012 been present at the picket line at the Emporium site, are restrained from;
(a) preventing, hindering or interfering with free access to, and free egress from, the Emporium site by any person or vehicle; and
(b) …
(c) …; and
(d) causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 3(a)-(c) of this order.
Once again, the authenticated order contained a penal notice.
SC: 7 JUDGMENT
21 On the morning of Friday 24 August 2012 Grocon issued a summons addressed to the CFMEU which was expressed to be returnable at 2.15 pm that same day. By the
summons, Grocon sought an order pursuant to r 75.06 of the Supreme Court Rules that the CFMEU be punished for alleged contempt of court in relation to alleged
breaches on 23 August 2012 of paragraph 4 of the Chief Justice’s order of 22 August 2012, being a paragraph to which I have not previously referred and which need not
be set out. A statement of charge was included in a schedule to the summons. It contained 6 charges of alleged contempt. The summons came before the Chief
Justice in the Practice Court. Once again, there was no appearance by the CFMEU. Grocon sought and obtained leave to amend the summons. Accordingly, that
afternoon, Grocon filed an amended summons returnable in the Practice Court on
Monday 27 August 2012. The amended summons included a statement of charge with 3 additional charges (which covered alleged events on the morning of 24 August 2012), making a total of 9 charges. Subsequently the hearing and determination of the amended summons was referred out of the Practice Court to me.
22 The amended summons duly came on before me for hearing on Monday 27 August 2012. Although the CFMEU had been given prior notice of the application, once again it did not appear. Counsel for Grocon sought to proceed with the charges. I indicated that I saw various potential difficulties and problems in the application. After a time, counsel for Grocon applied to adjourn the amended summons until Monday 3 September 2012 before me, and I made orders accordingly.
23 At 10.30 am on Tuesday 28 August 2012 the underlying proceeding came on before me on the return of the extant summons for interlocutory restraining orders in respect of the Emporium site, the 150 Collins Street site and the VCCC site. Yet again, despite prior notice, there was no appearance by the CFMEU. Earlier that morning certain relevant incidents had occurred in the vicinity of the Emporium site. Grocon called two witnesses 10 to give oral evidence and to produce photographs
10 Mr Brian McAdam and Mr David Gray. SC: 8 JUDGMENT
relating to those incidents in supplementation of the affidavit evidence that was already before the Court. (As explained below, I am proceeding on the basis that the
evidence given by those two witnesses on 28 August 2012 is not before me for the purposes of the contempt applications.) In substance, I granted the interlocutory
relief sought by Grocon on that day. The order was made after 12 noon.
24 In the order which I made on 28 August 2012, as authenticated, the Construction, Forestry, Mining and Energy Union was defined as “CFMEU”. In “other matters” it
was recited that the order was made against the CFMEU in its own capacity alone, and not against the CFMEU in any representative capacity nor against any other
person referred to in the heading to the order. Paragraph 3 of the order imposed interlocutory restraints on the CFMEU in relation to the Emporium site and also in relation to the 150 Collins Street site and the VCCC site. So far as directly relevant, paragraph 3 of the 28 August order was and is as follows:
3. Until the trial of this proceeding or further order, the CFMEU (whether by itself, its officers, servants, agents or howsoever or otherwise) is restrained from:
(a) preventing, hindering or interfering with free access to, and free egress from, the building site known as the “Emporium” site occupied by the third plaintiff at 269-321 Lonsdale St and located between Little Bourke Street and Lonsdale Street in the State of Victoria (“ the Emporium Site” ) by any person or vehicle;
(b) …
(c) …; and from
(d) causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs 3(a)-(c) of this order.
25 For reasons which will become apparent, paragraphs 4, 5 and 6 of the order should also be set out. They read as follows:
4. By 4 pm on 29 August 2012, the CFMEU must, in writing, direct each of the following of its employees or officers, namely Shaun Reardon, Derek Christopher, Elias Spernovasilis, Noel Washington and John Setka, that until the hearing and determination of this proceeding or further order of this Court, he must not:
SC: 9 JUDGMENT
(a) attend within 50m of any part of the building site occupied by each of the First Plaintiff or Second Plaintiff located at McNab Avenue, Footscray, in the State of Victoria;
(b) attend within 50m of any part of the Emporium site;
(c) attend within 50m of any part of the 150 Collins St Site;
(d) attend within 50m of any part of the VCCC Site.
5. By 1pm on 30 August 2012, the CFMEU, by a duly authorised person, must file and serve on the solicitors for the plaintiffs an affidavit setting out the steps taken by the CFMEU to comply with paragraph 4 of this order.
6. The plaintiffs are to serve a copy of this order on the CFMEU as soon as practicable.
The first contempt application
26 On Thursday 30 August 2012 Grocon filed a further amended version of its contempt
summons. The further amended summons was made returnable on Monday 3 September 2012. In the statement of charge contained in the schedule to the summons, all 9 charges (numbered 1-9) which had been contained in the amended summons of 24 August 2012 and which had been brought before me on 27 August 2012 were ruled through and thus abandoned. Replacing them were 6 new charges, numbered 10-15. On the return date (3 September 2012), Grocon was given leave to amend the particulars subjoined to each of charges 10-14 so as to substitute the expression “11.00am” for the expression “8.00am” in each case. As so amended, the first statement of charge now reads as follows 11 :
SCHEDULE
STATEMENT OF CHARGE
An order is sought that the Defendant be punished for its contempt in breaching the order of the Honourable Chief Justice Warren made 22 August 2012 ( Order ).
In this statement of charge “Emporium Site” means the building construction site located at 269-321 Lonsdale Street, Melbourne as referred to in the Order.
…
11 Because of the issues concerning interpretation and overlap, it is necessary to set out all of the charges in full. SC: 10 JUDGMENT
10 In breach of paragraph 3(a) of the Order, prior to 4.15pm on 28 August 2012, the Defendant prevented free access to the Emporium Site by persons.
PARTICULARS
On 28 August 2012, during the period of approximately 6.30am to 11.00am, the Defendant by its officers Ralph Edwards, John Setka, Bill Oliver, Elias Spernovasilis, Derek Christopher, Shaun Reardon, Gareth Stephenson together with persons present outside Gate 1 of the Emporium Site prevented free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
11. In breach of paragraph 3(a) of the Order, prior to 4.15pm on 28 August 2012, the Defendant hindered free access to the Emporium Site by persons.
PARTICULARS
On 28 August 2012, during the period of approximately 6.30am to 11.00am the Defendant by its officers Ralph Edwards, John Setka, Bill Oliver, Elias Spernovasilis, Derek Christopher, Shaun Reardon, Gareth Stephenson together with persons present outside Gate 1 of the Emporium Site hindered free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
12. In breach of paragraph 3(a) of the Order, prior to 4.15pm on 28 August 2012, the Defendant interfered with free access to the Emporium Site by persons.
PARTICULARS
On 28 August 2012, during the period of approximately 6.30am to 11.00am the Defendant by its officers Ralph Edwards, John Setka, Bill Oliver, Elias Spernovasilis, Derek Christopher, Shaun Reardon, Gareth Stephenson together with persons present outside Gate 1 of the Emporium Site interfered with free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
13. In breach of paragraph 3(d) of the Order, after the Order was made but prior to 4.15pm on 28 August 2012, the Defendant caused persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant caused persons to gather outside Gate 1 to the Emporium Site on 28 August 2012 during the period of approximately 6.30am to 11.00am and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
14. In breach of paragraph 3(d) of the Order, after the Order was made but prior to 4.15 pm on 28 August 2012, the Defendant procured persons to prevent free access to the Emporium Site by persons.
PARTICULARS
SC: 11 JUDGMENT
The Defendant procured persons to gather outside Gate 1 to the Emporium Site on 28 August 2012 during the period of approximately 6.30am to 11.00am and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
15. In breach of paragraph 3(d) of the Order, prior to 4.15pm on 28 August 2012, the Defendant incited persons to prevent free access to the Emporium Site.
PARTICULARS
On 28 August 2012, at approximately 7.36am, the Defendant by its officer, Ralph Edwards, using a loudspeaker said words to the effect of “Back here again tomorrow boys for more fun” and did thereby incite persons to return to attend at Gate 1 of the Emporium Site on 29 August 2012 for the purpose of preventing access to the Emporium Site by persons engaged to work on the Emporium Site.
27 Despite having been served, the CFMEU did not appear on the return of Grocon’s
further amended summons on 3 September 2012. On the other hand, the Attorney- General for Victoria appeared by counsel (pursuant to a summons filed earlier that day) and obtained an order that the Attorney-General be joined under r 9.06 of the Supreme Court Rules as the fourth plaintiff to the (first) contempt application.
28 The matter proceeded on 3, 4 and 5 September 2012. Grocon called its evidence and made submissions. The Attorney-General called no evidence and simply adopted Grocon’s submissions.
29 On 4 September 2012 I acceded to an application by Grocon for an order joining eight named individuals (each said to be an officer of the CFMEU) as the second to ninth defendants to the underlying proceeding. However I reiterate that they are not respondents to the present contempt applications. The only respondent is the CFMEU.
30 At the end of the hearing on Wednesday 5 September 2012 I reserved my decision.
The second contempt application
31 On Friday 7 September 2012 Grocon filed a second summons seeking an order that the CFMEU be punished for contempt (“the second contempt application”). It was returnable on 17 September 2012. As indicated above, it contained a statement of SC: 12 JUDGMENT
charge with 27 new charges concerning events at the Emporium site on 29, 30 and 31 August 2012 and events at the McNab site on 5 September 2012. The statement of
charge attached to the second summons read as follows (omitting paragraphs 19-21 which contained the charges ultimately not pressed as mentioned above):
SCHEDULE
STATEMENT OF CHARGE
An order is sought that the First Defendant (referred to in this statement of charge as the “Defendant”) be punished for its contempt in breaching the order of the Honourable Justice Cavanough made 28 August 2012 ( Order ) and the order of the Honourable Chief Justice Warren made 21 August 2012 (McNab Site Order ).
…
EMPORIUM SITE
1. In breach of paragraphs 3(a) of the Order, on 29 August 2012 the Defendant prevented free access to the Emporium Site by persons.
PARTICULARS
On 29 August 2012, during the period of approximately 6.30am to 1.00pm, the Defendants by its officers Bill Oliver, John Setka, Shaun Reardon, Gareth Stephenson and Elias Spernovasilis together with persons proximate to the Emporium Site prevented free access to the Emporium Site by persons engaged to work on the Emporium site on that day.
2. In breach of paragraph 3(a) of the Order, on 29 August 2012 the Defendant hindered free access to the Emporium site by persons.
PARTICULARS
On 29 August 2012, during the period of approximately 6.30am to 1.00pm, the Defendant by its officers Bill Oliver, John Setka, Shaun Reardon, Gareth Stephenson and Elias Spernovasilis together with persons proximate to the Emporium Site hindered free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
3. In breach of paragraph 3(a) of the Order, on 29 August 2012 the Defendant interfered with free access to the Emporium Site by persons.
PARTICULARS
On 29 August 2012, during the period of approximately 6.30 am to 1.00 pm, the Defendant by its officers Bill Oliver, John Setka, Shaun Reardon, Gareth Stephenson and Elias Spernovasilis together with persons proximate to the Emporium Site interfered with free access
SC: 13 JUDGMENT
to the Emporium Site by persons engaged to work on the Emporium Site on that day.
4. In breach of paragraph 3(d) of the Order, on 29 August 2012 the Defendant caused persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant caused persons to gather proximate to the Emporium Site on 29 August 2012 during the period of approximately 6.30am to 1.00pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
5. In breach of paragraph 3(d) of the Order, on 29 August 2012 the Defendant procured persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant procured persons to gather proximate to the Emporium Site on 29 August 2012 during the period of approximately 6.30 am to 1.00 pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
6. In breach of paragraph 3(d) of the Order, on 29 August 2012 the Defendant incited persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant incited persons to gather proximate to the Emporium Site on 29 August 2012 during the period of approximately6.30 am to 1.00pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
7. In breach of paragraph 3(a) of the Order, on 30 August 2012 the Defendant prevented free access to the Emporium Site by persons.
PARTICULARS
On 30 August 2012, during the period of approximately 6.00am to 2.30pm, the Defendant by its officers Shaun Reardon, Bill Oliver, John Setka and Elias Spernovasilis together with persons proximate to the Emporium Site prevented free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
8. In breach of paragraph 3(a) of the Order, on 30 August 2012 the Defendant hindered free access to the Emporium Site by persons.
PARTICULARS
On 30 August 2012, during the period of approximately 6.00am to 2.30pm, the Defendant by its officers Shaun Reardon, Bill Oliver,
SC: 14 JUDGMENT
John Setka and Elias Spernovasilis together with persons proximate to the Emporium Site hindered free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
9. In breach of paragraph 3(a) of the Order, on 30 August 2012 the Defendant interfered with free access to the Emporium Site by persons.
PARTICULARS
On 30 August 2012, during the period of approximately 6.00am to 2.30pm, the Defendant by its officers Shaun Reardon, Bill Oliver, John Setka and Elias Spernovasilis together with persons proximate to the Emporium Site interfered with free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
10. In breach of paragraph 3(d) of the Order, on 30 August 2012 the Defendant caused persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant caused persons to gather proximate to the Emporium Site on 30 August 2012 during the period of approximately 6.00am to 2.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
11. In breach of paragraph 3(d) of the Order, on 30 August 2012 the Defendant procured persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant procured persons to gather proximate to the Emporium Site on 30 August 2012 during the period of approximately 6.00am to 2.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
12. In breach of paragraph 3(d) of the Order, on 30 August 2012 the Defendant incited persons to prevent free access to the Emporium Site.
PARTICULARS
The Defendant incited persons to gather proximate to the Emporium Site on 30 August 2012 during the period of approximately 6.00am to 2.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
13. In breach of paragraph 3(a) of the Order, on 31 August 2012 the Defendant prevented free access to the Emporium Site by persons.
PARTICULARS
On 31 August 2012, during the period of approximately 5.15am to 1.30pm, the Defendant by its officers Ralph Edwards, Shaun
SC: 15 JUDGMENT
Reardon, John Setka, Bill Oliver, Elias Spernovasilis and Frank O’Grady together with persons proximate to the Emporium Site prevented free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
14. In breach of paragraph 3(a) of the Order, on 31 August 2012 the Defendant hindered free access to the Emporium Site by persons.
PARTICULARS
On 31 August 2012, during the period of approximately 5.15am to 1.30pm, the Defendant by its officers Ralph Edwards, Shaun Reardon, John Setka, Bill Oliver, Elias Spernovasilis and Frank O’Grady together with persons proximate to the Emporium Site hindered free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
15. In breach of paragraph 3(a) of the Order, on 31 August 2012 the Defendant interfered with free access to the Emporium Site by persons.
PARTICULARS
On 31 August 2012, during the period of approximately 5.15am to 1.30pm, the Defendant by its officers Ralph Edwards, Shaun Reardon, John Setka, Bill Oliver, Elias Spernovasilis and Frank O’Grady together with persons proximate to the Emporium Site interfered with free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
16. In breach of paragraph 3(d) of the Order, on 31 August 2012 the Defendant caused persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant caused persons to gather proximate to the Emporium Site on 31 August 2012 during the period of approximately 5.15am to 1.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
17. In breach of paragraph 3(d) of the Order, on 31 August 2012 the Defendant procured persons to prevent free access to the Emporium Site by persons.
PARTICULARS
The Defendant procured persons to gather proximate to the Emporium Site on 31 August 2012 during the period of approximately 5.15am to 1.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
18. In breach of paragraph 3(d) of the Order, on 31 August 2012 the Defendant incited persons to prevent free access to the Emporium Site.
SC: 16 JUDGMENT
PARTICULARS
The Defendant procured [sic] persons to gather proximate to the Emporium Site on 31 August 2012 during the period of approximately 5.15am to 1.30pm and prevent free access to the Emporium Site by persons engaged to work on the Emporium Site on that day.
MCNAB SITE
…
22. In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant prevented free access to the McNab Site by a vehicle.
PARTICULARS
On 5 September 2012, during the period of approximately 6.30am to 7.00am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site prevented free access to the McNab Site by a semi trailer that was attempting to enter the McNab Site.
23. In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant hindered free access to the McNab Site by a vehicle.
PARTICULARS
On 5 September 2012, during the period of approximately 6.30 am to 7.00 am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site hindered free access to the McNab Site by a semi trailer that was attempting to enter the McNab Site.
24. In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant interfered with free access to the McNab Site by a vehicle.
PARTICULARS
On 5 September 2012, during the period of approximately 6.30am to 7.00am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site interfered free [sic] access to the McNab Site by a semi trailer that was attempting to enter the McNab Site.
25. In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant prevented free access to the McNab Site by a vehicle.
PARTICULARS
On 5 September 2012, at approximately 8.04am, the Defendant by its officers John Setka and Shaun Reardon together with persons
SC: 17 JUDGMENT
proximate to the McNab Site prevented free access to the McNab Site by a semi trailer that was attempting to enter the McNab Site.
26. In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant hindered free access to the McNab Site by a vehicle.
PARTICULARS
On 5 September 2012, at approximately 8.04am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site hindered free access to the McNab Site by a semi trailer that was attempting to enter the McNab Site.
27. In breach of paragraph 2(a) of the McNab Site Order, on 5 September 2012 the Defendant interfered with free access to the McNab Site by a vehicle.
PARTICULARS
On 5 September 2012, at approximately 8.04am, the Defendant by its officers John Setka and Shaun Reardon together with persons proximate to the McNab Site interfered free [sic] access to the McNab Site by a semi trailer that was attempting to enter the McNab Site.”
32 On 13 September 2012, pursuant to a summons filed by the Attorney-General on 10 September 2012, I ordered that the Attorney-General be joined, pursuant to r 9.06 of the Supreme Court Rules, as fourth plaintiff to the second contempt application.
33 On the same day, because of the obvious and extensive overlap between the two contempt applications, I ordered, of the Court’s own motion, that the hearing of the first contempt application be reopened and that the two applications be heard together. I further ordered that the evidence adduced in each contempt application was to be taken to be also evidence in the other application. The further hearing of the two applications was then fixed for 21 September 2012.
34 On 20 September 2012 the CFMEU filed an appearance in the underlying proceeding. During the afternoon of that day Mr Morrissey SC contacted the Court on behalf of the CFMEU to request an urgent mention. 12 The matter was brought on for mention accordingly. The CFMEU sought an adjournment of the hearing
12 Prior to 20 September 2012, the only contact the CFMEU had made with the Court in relation to the proceeding had been an email of 30 August 2012 from one of its legal officers, Ms Kate Marshall, attaching an affidavit prepared by Mr Dave Noonan, Secretary of the National Construction Division of the CFMEU, in compliance with paragraph 5 of my order of 28 August 2012 (see above). SC: 18 JUDGMENT
scheduled for 21 September 2012. Ultimately I granted an adjournment until 26 September 2012.
35 The hearing duly commenced on 26 September 2012 and continued on 27 and 28
September 2012. Directions were then given for the filing of written submissions and the hearing of closing oral submissions. The latter were heard on 18 and 19 October
2012.
The scope of the evidence and other evidentiary points
36 A very large quantity of evidentiary material was tendered by Grocon. It included the oral evidence heard on 3 and 4 September 2012 13 , the oral evidence heard on
26 and 27 September 2012 14 and numerous affidavits. The exhibits to the affidavits
included various publications, maps, diagrams and photographs, as well as extensive video footage, including footage taken over 5 separate days by closed circuit television cameras at the two relevant building sites, video footage taken both by Grocon’s security staff and by officers of the Building Inspectorate of the Fair Work Building Commission of the Commonwealth, and also some mass media television footage downloaded from the internet. The evidence tendered also included numerous still images taken from video footage.
37 Certain parts of the affidavit material that had been relied on by Grocon during the hearings on and before 28 August 2012 were tendered afresh by Grocon in these contempt applications.
13 On 5 September 2012 I made an order that any requirement that evidence in the first contempt application be given by affidavit be dispensed with nunc pro tunc in respect of the evidence given orally on 3 and 4 September 2012. That order referred specifically to the oral evidence given by Matthew Elija Tarpkos, Damian Cravino, Meredith Anne Knight, David Gray, Nikolce Popovski, John Van Camp, Ailsa Jane Carruthers and Brian McAdam on those days. This was done out of caution, having regard in particular to rules 40.02 and 75.06 of the Supreme Court (General Civil Procedures) Rules 2005 . See Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (No 2) (1985) 9 FCR 194, 199, 226 and Deckers Outdoor Corporation Inc v Farley (No 6) [2010] FCA 391 [136] to [142] (Tracey J). The CFMEU takes no point about the order. 14 On 27 September 2012, by consent, I made an order similar to the order of 5 September 2012 (see above) regarding the oral evidence given on 26 and 27 September 2012. That order referred specifically to the oral evidence given by Brian McAdam, Jamie Gilchrist Rigg and Ailsa Jane Carruthers on those days. SC: 19 JUDGMENT
38 Much of the evidentiary material in these applications was hastily assembled at a time when, presumably, a purpose of the applications was to secure obedience to the
interim and interlocutory orders. 15 During the period in which the contempt applications were proceeding ex parte, and for some time thereafter, the Court was
presented with a considerable task in trying to sort out the admissible from the inadmissible material. 16 After the CFMEU appeared, their counsel raised or
foreshadowed various objections to admissibility. Ultimately, however, the parties arrived at a sensible agreed position in relation to the scope of the evidence to be
admitted, including agreement as to the redaction of certain affidavits, as to the exclusion of certain other material and as to the admission of particular material for a
limited purpose only. 17 The CFMEU does not contest the authenticity or admissibility of any of the publications, maps, diagrams, photographs, video footage or still images, although it is agreed between the parties that none of the captions attached by Grocon (or their employees or agents) to the photographs or still images are part of the evidence. Nor does the CFMEU contest the authenticity or admissibility of the mass media television footage, although it is agreed between the parties that none of the accompanying written or verbal commentary is part of the evidence.
39 The CFMEU concedes that it was given notice in advance of all applications to the Court and that it also received timely notice of everything that had happened in Court on each relevant day from 17 August 2012 onwards. It concedes the matters set out in the host of affidavits of service filed by the applicants, without requiring that the affidavits be treated as exhibits. Indeed, it takes no point at all about service. 18
15 There is no suggestion that the CFMEU has disobeyed any of the relevant restraining orders since 5 September 2012. 16 Of course the non-appearance of a defendant does not authorise reliance on inadmissible material. 17 See especially transcript (27 September 2012) 145-146, 186-188, 189-190; (28 September 2012) 193-199 (and the list of objections there referred to); (18 October 2012) 333-336. For transcript references in this judgment, it is unfortunately necessary to specify the hearing date on every occasion because the transcript page numbering commences several times. 18 Transcript (19 October 2012) 372. SC: 20 JUDGMENT
40 Apart from filing affidavits of service, the Attorney-General called no evidence at all.
41 The CFMEU did not call any witnesses. However, through Grocon’s witness, Mr McAdam, it tendered three documentary exhibits. Two were maps of the
Emporium site as a whole. The third was a group of photographs showing a wall and a door near the north-western corner of the site.
42 The CFMEU sought to cross-examine only two of Grocon’s several witnesses and
deponents of affidavits, namely Brian McAdam and Jamie Rigg. In addition, by arrangement between the parties, Grocon agreed to call two police officers whose
roles had been referred to in affidavits, namely Senior Sergeant Jody Buckley and Sergeant Robert Thompson, principally with a view to their being cross-examined on behalf of the CFMEU.
43 The sheer bulk of the evidentiary material remains considerable. For the sake of saving time in Court, quite a lot of it has had to be read or (in the case of the numerous computer disks and video recordings) viewed only after the conclusion of final submissions (as other commitments have allowed). Grocon’s closing written submissions alone occupy 90 pages, with 222 paragraphs and 100 footnotes, and include evidentiary tables spread over 11 pages incorporating hundreds of references to transcript pages and exhibits. The Attorney-General’s written submissions occupy a relatively modest 61 pages, but are adorned with 285 footnotes. The CFMEU’s closing written submissions, including an addendum, occupy 25 pages altogether, with 60 footnotes. Counsel spoke to their written submissions for a little over one day. The legal representatives of all parties have done an enormous amount of high quality work, and I express my gratitude for that.
44 It was mentioned above that I am proceeding on the basis that the evidence that was given on 28 August 2012 by the two witnesses who were called by Grocon that day is not before me for the purposes of the contempt applications. This needs explanation and some elaboration.
SC: 21 JUDGMENT
45 One of the witnesses called on 28 August 2012 was the abovementioned Brian McAdam, who is employed by Grocon Pty Ltd, a member of the Grocon group, as
Operations Manager, Victoria. In that position McAdam manages operations for all Grocon building projects in Victoria, including construction operations at the
Emporium and McNab sites. The other witness was Mr David Gray, who is employed by Grocon as a security provider.
46 McAdam gave oral evidence about what he had observed earlier that same morning
(Tuesday 28 August 2012) in relation to events at the Emporium site. Mr Gray produced various videos and photographs taken that morning in the vicinity of the
site. All of that evidence was led by Mr North SC, who apparently held senior counsel’s brief for Grocon on the applications for interim and interlocutory restraining orders in the underlying proceeding. As indicated above, the application on 28 August 2012 was for an order to extend until the trial of the underlying proceeding some of the interim restraining orders which had been made by the Chief Justice on 22 August 2012. On the other hand, it seems that senior counsel’s brief for Grocon in relation to the contempt matters has at all relevant times been held by Mr McDonald SC. In any event, during the initial hearing of the first contempt application on 3, 4 and 5 September 2012, although Grocon tendered 16 exhibits (exhibits P 1 to P 16), it did not tender or expressly seek to rely upon the evidence which had been given by McAdam or by Gray on 28 August 2012. Indeed, although he noted that I had previously heard from McAdam, 19 Mr McDonald called both of those gentlemen afresh. He took McAdam through his recollection of the events of 28 August 2012 from the beginning. He also adduced evidence from Gray identifying afresh the videos and photographs which had been produced on 28 August 2012 (as well as adducing other evidence from him). Confirming my impression that no reliance was being placed by Grocon on any of the evidence that had been given by the two witnesses on 28 August 2012, Mr McDonald proceeded
on 5 September 2012, as mentioned above, 20 to seek and obtain an order dispensing
19 Transcript (28 August 2012) 44. 20 See footnote 13. SC: 22 JUDGMENT
with any requirement under the Rules of Court that evidence in the first contempt application be given by affidavit in respect of the evidence given orally on 3 and
4 September 2012. The order, as sought and made, referred specifically to the evidence given by McAdam and Gray on 3 September 2012, but not to the evidence
given by either of them on 28 August 2012.
47 This apparently clear picture was muddied somewhat by later events. As indicated above, on 13 September 2012, after the commencement of the second contempt
application, it was ordered that the first contempt application be reopened and that evidence in the one be also evidence in the other. In support of the second contempt
application Grocon filed an affidavit of McAdam which had been sworn on 6 September 2012. Subsequently the CFMEU objected to paragraphs 19-26 thereof. In effect, Grocon acceded to that objection. Subject to that qualification, the affidavit was received as exhibit P 24. However, in paragraph 17 of the affidavit, to which no objection was expressly taken, McAdam had said:
As to the events at the Emporium Site on the morning of 28 August 2012, I refer to and rely upon my oral evidence given before his Honour Justice Cavanough of the Supreme Court of Victoria on 28 August 2012. I have set out some additional observations below.
McAdam did not in this affidavit (or in any other affidavit filed in support of either contempt application) incorporate or otherwise refer to the (fresh) oral evidence which he had given on 3 September 2012. However, one might think that, in his affidavit of 6 September 2012, McAdam must have been meaning to refer to that
evidence, and that paragraph 17 must have been prepared in error. Paragraph 17 was not expressly mentioned again during the hearing of the contempt applications, whether in evidence or in submissions. On the other hand, buried within lengthy sets of tables subjoined to paragraphs 108, 137 and 146 respectively of Grocon’s closing written submissions dated 5 October 2012, there are references to several transcript pages of the hearing on 28 August 2012. The transcript references include
references to evidence given by both McAdam and Gray on that day. By contrast,
SC: 23 JUDGMENT
the written submissions of the Attorney-General (also dated 5 October 2012) make no mention at all of any evidence given on 28 August 2012.
48 Generally speaking, as a matter of fairness and natural justice, it is important to be
able to identify precisely the scope of the evidence that is before the court in any case, and all the more so in a case of alleged contempt. Moreover, in the present
case, the evidence given by McAdam on 28 August 2012 in respect of one particular topic, being a topic that later assumed some prominence in final submissions, was
more extensive than the evidence which he later gave on that topic on 3 and 26 September 2012. I refer to the question whether there were any and what joint plans
of Grocon and the police as to the method by which Grocon’s employees might get to the Emporium site on the morning of 28 August 2012. During final addresses, the CFMEU submitted that there was no evidence from McAdam or from anyone else to the effect that any such joint plans existed. In their replies, neither Grocon nor the Attorney-General referred to what McAdam had said in this respect on 28 August 2012. 21 The parties are not likely to have proceeded as they did in this regard in final addresses had any of them been treating McAdam’s evidence of 28 August 2012 as part of the evidence before the Court on the contempt applications.
49 It is perhaps unfortunate that this evidentiary matter was not expressly cleared up during the hearing. If, now, to exclude or disregard the evidence given on 28 August 2012 was going to affect my findings in this matter to the prejudice of any party, I would probably have relisted the matter to give the parties an opportunity to be heard on the point, despite the cost and inconvenience involved. However, the CFMEU did not refer to or rely on any of the evidence given on 28 August 2012 for any purpose, and it could hardly be heard to say that it would be prejudiced by my excluding and disregarding that evidence. On the other hand, as I will explain in due course, I am satisfied beyond reasonable doubt by the evidence that is
undoubtedly before me, without more, that there was a joint Grocon/police plan to facilitate the passage of the relevant Grocon workers to the Emporium site on the
21 Compare, especially, transcript (28 August 2012) 46, 49-50. None of the 28 August 2012 transcript references contained in the tables to Grocon’s submissions pertained to this issue. SC: 24 JUDGMENT
morning of 28 August 2012. Moreover, even if there were no such plan, I would remain satisfied beyond reasonable doubt that the CFMEU has breached the terms of
the relevant orders as alleged in each charge. Therefore, the applicants will not be prejudiced, either, if I put aside entirely the evidence given by McAdam (and Gray)
on 28 August 2012. Hence I have decided to proceed on the basis that none of the evidence adduced on 28 August 2012 is before me on the contempt applications. I
have disregarded that evidence completely.
Fact-finding and circumstantial evidence
50 The applicants 22 submit that, as to inferences to be drawn from the evidence leading
to the ultimate conclusions urged by the applicants, it is not the law that every piece of circumstantial evidence must of itself be proved beyond reasonable doubt. They rely on the following passage in the leading judgment of Dawson J in Shepherd v R :23
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided that they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
51 The applicants also rely on what was said by Callaway JA (with whom Phillips CJ
agreed) in R v Kotzmann :24
Although Wigmore deprecated the utility of the metaphor to which Dawson J referred, it does helpfully describe two distinct kinds of reasoning. Sometimes a jury is satisfied beyond reasonable doubt because of an accumulation of detail, especially an accumulation of detail bearing on a critical issue in the case. The intention of the accused may, for example, be a critical issue and there may be six or seven facts which, taken together,
22 The Attorney-General did not include any submissions about this topic in his written outline of submissions but Grocon did; and counsel for the Attorney-General, Mr Wood SC, at the outset of his final oral submissions, said that the Attorney-General adopted what Grocon had said, both in writing and as expanded upon orally, save for one unrelated matter: transcript (18 October 2012) 253. 23 (1990) 170 CLR 573, 579-580. 24 [1999] 2 VR 123, 129 [16]-[17]. SC: 25 JUDGMENT
establish beyond reasonable doubt what the accused’s intention was, even if none of those facts is itself established to the criminal standard. We all reason like that in the common affairs of life; such reasoning is not confined to the jury room; the six or seven facts are aptly described as “strands in a cable” of proof. There are other cases where sequential reasoning is necessary or appropriate. Fact A may be probative of guilt only if fact B is true and fact B may be true only if fact C in turn is true. If there is no other evidence bearing on a critical issue, each of those facts must be proved beyond reasonable doubt. The jury cannot treat facts B and C as strands in a cable of proof. Each of them is an “indispensable link in a chain”.
It does not follow that, wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt. The qualification, “[i]f there is no evidence bearing on a critical issue” is important. A jury may be invited to conclude that the accused is guilty by reference to seven facts, one or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable. If the judge said that one of the links in the chain establishing one of the seven facts did not need to be established beyond reasonable doubt, that would betray no error of logic. The jury would consider that link in that chain only for the purpose of deciding whether one of the strands of the cable was present. If it was, it would be part of the accumulation of detail. If it was not, the other six facts might be sufficient on their own to satisfy the criminal standard of proof.
52 The applicants also rely on Rogers v R 25 where Mandie JA referred to Shepherd v R in the following terms:
The jury was entitled to consider whether, and to conclude that, in the light of the whole of the evidence, an inference of guilt beyond reasonable doubt should be drawn from a combination of the facts, although no single one of them viewed in isolation would support that inference. [Here his Honour cited Chamberlin v R (No 2) .26 ] The individual facts in the present case constitute what Dawson J referred to in Shepherd v R 27 as “strands in a cable” and, taken together, they are capable of leading to the inference beyond reasonable doubt that PR was the robber in each of the robberies.
53 Finally, the applicants rely on what was said by Vincent and Nettle JJA and Vickery AJA in R v Cavkic (No 2) :28
… whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt depends not only on the nature of the fact but upon the reasoning process by which that juror sees fit to reach his or her conclusion on the ultimate issue of guilt. To repeat what was said by Dawson J in Shepherd 29 , it is only where it is necessary for the jury to reach a
25 [2011] VSCA 412 [38]. 26 (1984) 153 CLR 514, 536. 27 (1990) 170 CLR 573, 579. 28 (2009) 28 VR 341 [105]. 29 (1990) 170 CLR 573, 584-5. SC: 26 JUDGMENT
conclusion of fact as an indispensable, intermediate step in the reasoning process toward an inference of guilt that the conclusion must be established beyond reasonable doubt.
54 In response, the CFMEU submits that the applicants explicitly rely upon “a circumstantial case” to “prove the elements of the charge”, noting that the applicants
rely upon Shepherd v R 30 in that regard.31 However, it would be more accurate to say that the applicants rely partly on circumstantial evidence to prove one of the elements
of each charge, namely that the CFMEU has breached the relevant order. Indeed, in relation to that element, and particularly in relation to the issues arising thereunder
as to whether free access to the relevant building sites was prevented, hindered or interfered with, the applicants rely principally if not exclusively on direct evidence of
observations made by humans or by machines. It is only, or mainly, in relation to
the further issue arising thereunder as to whether any such prevention, etc is attributable to the CFMEU that the applicants resort to circumstantial evidence. Even then, the applicants also rely on both direct evidence and alleged admissions in support of their case that the CFMEU caused or authorised the alleged prevention etc.
55 The CFMEU goes on to submit that it is not merely the elements of a charge which must be proved beyond reasonable doubt, but any fact indispensable to the applicants’ case. 32 That much may be accepted. However, the CFMEU goes too far in submitting, as it does, that:
Further, when relying upon inferential reasoning, the court should not act upon an inference unless it is the only reasonable inference available on the facts. 33
This submission wrongly suggests that no inference at all – even as to a fact or matter of little importance – can be drawn unless it is the only inference reasonably available. However, it is clear from the very cases upon which the CFMEU itself
30 (1990) 170 CLR 573. 31 CFMEU’s written closing submissions dated 15 October 2012, para 4.2. 32 Citing Shepherd v R (1990) 170 CLR 573, 581 (Dawson J). 33 CFMEU’s written closing submissions dated 15 October 2012 para 4.2, citing Knight v The Queen (1992) 175 CLR 495; Martin v Osborne (1936) 55 CLR 367; and Caswell v Powell Duffy Associated Collieries Ltd [1940] AC 152, 169. See also para 2.3 thereof, where Kotvas v R [2010] VSCA 309 is cited. SC: 27 JUDGMENT
relies in this regard that that is not so. Generally speaking, the requirement for proof beyond reasonable doubt applies only to a fact or conclusion (including an
intermediate factual conclusion) that is an indispensable link in a chain of reasoning towards an inference of guilt. 34 In Kotvas v R ,35 which was an appeal from the verdict of a jury, the case against the accused was circumstantial. In that context, Redlich JA (with whom Maxwell P and Harper JA agreed) said that there may be some fact or
piece of evidence on which the Crown relies which, although logically only a “strand in a cable”, is so influential that, standing alone, it should be treated as though it
were an indispensable link in a chain of reasoning toward guilt, with the result that the trial judge should, as a matter of prudence, direct the jury that the fact or piece of
evidence must be established to the criminal standard. 36 In favour of the CFMEU, I will assume (without deciding), and proceed on the basis that, the superadded requirement (recognised in Kotvas) to be satisfied beyond reasonable doubt in respect of non-indispensable but particularly “influential” facts or pieces of evidence is as applicable in this summary proceeding as it would be in a jury trial. However, beyond that, I do not accept the CFMEU’s proposition.
56 The CFMEU contends that there are several facts which are indispensable to the applicants’ case. However, it gives only one alleged example. It contends, in relation to each charge pertaining to the Emporium site except the charge of incitement, that the applicants must prove beyond reasonable doubt that the acts of the members of the crowd assembled at Gate 1 of the Emporium site were procured or caused by the CFMEU. The applicants do not deny that they must prove beyond reasonable doubt that the conduct complained of is legally attributable to the CFMEU. This is a matter to which I will return when I come to the parties’ final submissions, after I have set out my findings of primary fact (which are based essentially on direct observational evidence or on matters that are not in dispute).
34 See Shepherd v R (1990) 170 CLR 573, 579, 581 (Dawson J); Knight v R (1992) 175 CLR 495, 503 (Mason CJ, Dawson and Toohey JJ). 35 [2010] VSCA 309. 36 At [24]-[27]. SC: 28 JUDGMENT
The silence of the CFMEU
57 The applicants 37 accept that they bear the onus of proving the charges of contempt
beyond reasonable doubt. They accept that the fact that the CFMEU has not led evidence is not of itself evidence against the CFMEU, nor is it an admission of guilt
by conduct. 38 However, the applicants submit that the CFMEU is in a position to lead evidence of additional facts known only to it which, if they existed, would rebut
the applicants’ claim that the CFMEU has acted in contempt. They submit that only the CFMEU is capable of leading evidence that it:
(a) did not authorise the CFMEU officials to engage in conduct constituting a
contempt;
(b) did not procure the attendance of a large number of individuals who attended the Emporium site on the mornings of 28, 29, 30 and 31 August 2012 and the McNab site on 5 September 2012; and
(c) has taken steps to prevent the relevant conduct. 39
The applicants submit that, in these circumstances, the failure of the CFMEU to lead evidence by way of explanation or answer to the charges of contempt, as might be expected if the truth of that evidence was consistent with innocence, is of evidentiary significance. 40 For this proposition, the applicants cite two paragraphs from the judgment of Gaudron and McHugh JJ in Weissensteiner v R ,41 which they say was in turn cited with approval by the plurality in Azzopardi v The Queen .42 The applicants also cite a particular paragraph from RPS v R ,43 an additional paragraph from
37 Once again, this is an area in relation to which only Grocon, not the Attorney-General, made express submissions. However, as before, I take it that the Attorney-General has adopted the Grocon submissions relating to this matter, too. 38 Grocon’s closing written submissions dated 5 October 2012, para 99, citing Azzopardi v The Queen (2001) 205 CLR 50 [34]. 39 Grocon’s written closing submissions dated 5 October 2012, para 99. 40 Ibid, para 100. 41 (1993) 178 CLR 217 [245]-[246]. 42 (2001} 205 CLR 50 [66]. 43 (2000) 199 CLR 620 [27]. SC: 29 JUDGMENT
Azzopardi 44 and passages from the respective judgments of Maxwell P and Ashley JA in Butler v The Queen .45
58 In response, 46 the CFMEU denies that its silence can be used against it in the ways
contended for by the applicants. It says, presumably on the basis that these contempt proceedings should be treated as the equivalent of criminal proceedings
for this purpose (a proposition apparently not disputed by the applicants), that any room for using its silence against it is extremely limited in the circumstances of this
case. It is prepared to concede, in view of the strength and weight of the evidence against it on the particular topics of the terms of its rules and the identity of its
officials, and the very nature of those topics, that its silence on them could appropriately be used against it (see further below). However, beyond that, according to the CFMEU, this is not an exceptional case of the kind referred to in Weissensteiner , as that case was later explained in the joint judgment in RPS v R 47 and by Callinan J in Dyers v R .48
59 I am inclined to agree with the submissions of the CFMEU on this point, having regard in particular to the tenor of the observations made by the judges of the High Court who comprised the majority in Dyers v R 49 . However, I need not and do not decide this point finally, because I am satisfied beyond reasonable doubt that the CFMEU is guilty of each of the 30 (remaining) charges of contempt of court without my having relied on or taken into account in any way the CFMEU’s silence, save in the extremely limited respects (relating to the terms of its rules and the identity of its officials) acknowledged by its own counsel to be appropriate and further dealt with below.
44 (2001) 205 CLR 50 [68]. 45 [2011] VSCA 417 [24]-[33] (Maxwell P) and [142]-[143] (Ashley JA). 46 See CFMEU’s closing written submissions dated 15 October 2012, para 19.1; CFMEU’s addendum thereto dated 17 October 2012, para 12; transcript (18 October 2012) esp 337-345. 47 (2000) 199 CLR 620, 632-633 [27]-[29]. 48 (2002) 210 CLR 285, 327 [120]-[121] (Callinan J). 49 (2002) 210 CLR 285, esp at 291 [5] and 292 [9]-[10] (Gaudron and Hayne JJ); 305-306 [52]-[53] (Kirby J); 326-328 [119]-[123] (Callinan J). See also Markisic v Keelty [2005] NSWSC 1124 [51] (Simpson J); compare Australian Prudential Regulation Authority v Siminton [2006] FCA 326, [24]-[30]. Both of these cases are referred to in my judgment in Livingspring Pty Ltd v Ng [2007] VSC 9, [79] (footnote 56). Compare also Bovis Lend Lease Pty Ltd v CFMEU (2009) 254 ALR 306, 321 [69]. SC: 30 JUDGMENT
Attaching liability for criminal conduct to an industrial association
60 Grocon’s final written submissions include a clear and comprehensive analysis of the
legal principles concerning the attachment to a corporate entity, and in particular to an industrial association, of liability for criminal conduct. The CFMEU takes no
issue at all with this analysis. I will treat it as correct. I take the liberty of setting it out verbatim save that I have incorporated Grocon’s footnotes into this judgment
and renumbered them (so as to continue the sequence of the footnotes to this judgment) and I have omitted the footnotes to the internal quote. Grocon’s analysis
is as follows:
At common law, the test of attachment of criminal responsibility was neatly summarised by Brennan J in Environment Protection Authority v Caltex Refinery Co Pty Ltd , as follows: 50
A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities. It cannot be subjected to the corporal penalties to which a natural person who offends against the criminal law can be subjected. Yet it can be held criminally liable. The weight of authority shows that, with some exceptions, a corporation may be criminally liable where the proscribed act done or the proscribed omission made by a corporation's officer or agent can be treated as having been done or made by the corporation with the mental state possessed by the person or persons who did or authorized the doing of the act or permitted the making of the omission, whether or not the officers or agents of the corporation are also liable. There may be an alternative basis of a corporation’s criminal liability, namely, as an aider, abettor, counsellor or procurer of the offence committed by the human principal offender. Whatever basis of liability is applied, criminal liability can be sheeted home to a corporation only upon proof that what is done or omitted to be done and the mental state with which the act was done or the omission was made are within the scope of the authority conferred by the corporation upon the person or persons on whose act, omission or state of mind the corporation’s criminal liability is said to depend. The prosecution of a corporation thus requires proof of more than the conduct of particular natural persons which satisfies the elements of an offence. Proof of those additional issues, linking the artificial entity with the relevant elements of the offence, often depends entirely or substantially on proof of documents in the corporation's possession or power. Moreover, some offences arising from the creation of danger or a failure to exercise care may be caused by organizational defects provable only by production of corporate records .
The weight of authority supports the view that in order to attach liability to a corporate entity for contempt, it must be shown that the corporate entity authorised the act complained of or failed to take proper steps to prevent the contemptuous conduct occurring. 51
50 (1993) 178 CLR 477, 514.2 to 515.2. 51 Evenco Pty Ltd v Australasian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118 [27] (Pincus J, dissenting), a view which was approved by the Full Court of the Federal Court of Australia in Hanley v AFMEPKIU (2000) 100 FCR 530, 546.1 to 549.1 [67]-[76]. SC: 31 JUDGMENT
As to the scope of authority conferred upon the individuals through whom the corporate entity acts, the following propositions arise from the authorities.
(a) To bind the industrial association, authorisation must come from the constitution, rules or membership of an industrial association, or alternatively later ratification of the conduct, or the receipt of some benefit from the conduct. 52
(b) The conduct need not be expressly authorised by the rules of the organisation. Rules will not accommodate conduct contrary to law, but that does not mean that unlawful conduct cannot be attributed to the organisation. 53
(c) It is enough if the agent has authority to enter into transactions of the sort in question. If so, the principal cannot say that the agent acted wrongfully. 54 Once authority to engage in certain tasks is proved, vicarious liability extends to unauthorised modes of performing those tasks. If it is sought to be proved that the employer is liable because it failed to take proper steps to prevent the acts complained of, it must be shown that there were circumstances which required the employer to take the steps and that the steps, if any, taken by the employer were sufficient to avoid vicarious liability. 55
Formal proof of the CFMEU’s rules and officeholders
61 As mentioned above, the CFMEU is an organisation registered with the Commonwealth statutory body that was known at the time of the hearing as Fair Work Australia (FWA). 56 The CFMEU is so registered under the FW(RO) Act. That is common ground. 57 Initially, senior counsel for the CFMEU told the Court that, there being an underlying proceeding in this matter, his client did not admit the
52 The historical need for conduct to be so authorised is discussed in Giblan v National Amalgamated Labourers’ Union of Great Britain and Ireland [1903] 2 KB 600, 617.3-617.8, 620.5, 625.3-625.7; Denaby & Cadeby Main Collieries Ltd v Yorkshire Miners Association [1906] AC 384, 390.4-390.7 and 391.5-391.9; Waterside Workers Federation of Australia v Burgess Brothers Ltd (1916) 21 CLR 129, 136.5 and 137.6-138.7; Commonwealth Steamship Owners Association and the Federated Seamen’s Union of Australasia (1923) 33 CLR 297, 303.8, 307.8, 314.9-315.3. 53 Employment Advocate v NUW (2000) 100 FCR 454, 493.1 to 493.9 [119]-[121]; Hanley v AFMEPKIU (2000) 100 FCR 530, 550.3-550.6 [83]-[84]; Alfred v Wakelin (No 2) (2008) 176 IR 430, 447.7 [59(5)]; Hamberger v CFMEU (2000) 104 IR 45, 56.1 [71]. 54 TPC v Tubemakers of Australia Ltd (1983) 47 ALR 719, 742, cited in Hanley v AFMEPKIU (2000) 100 FCR 530, 550.5 [83]; Alfred v Wakelin (No 2) (2008) 176 IR 430, 447.9 [59(6)]. 55 Hanley v AFMEPKIU (2000) 100 FCR 530, 548.9 to 549.1 [76]. 56 Fair Work Australia was renamed the Fair Work Commission on 1 January 2013 by the Fair Work Amendment Act 2012 (Cth). However I will continue to refer to it as FWA. 57 It is also confirmed by the evidence of Ailsa Jane Carruthers, an officer of FWA, who gave unchallenged evidence to the effect that the CFMEU was a registered organisation. It is further confirmed by the fact that the CFMEU has filed an unconditional appearance in the underlying proceeding in its registered (corporate) name. SC: 32 JUDGMENT
matters alleged by the applicants in relation to the CFMEU’s rules and its relevant office holders. However, he indicated even then that he did not intend to cross-
examine the relevant witness on the matter. 58 Indeed, the CFMEU did not object to or question any of the evidence led by Grocon in these respects. Nor did the
CFMEU’s closing written submissions include any suggestion that any of the matters had not been proved. Quite the opposite. 59 Moreover, senior counsel for the
CFMEU indicated during his closing oral submissions that these matters were not matters that the CFMEU had chosen to contest and hence were not matters that the
Court would need to rule upon. 60 In the circumstances I will deal with the matters summarily.
62 I am satisfied beyond reasonable doubt that for the period from 28 August 2012 until 5 September 2012 (and indeed for the whole of the period from 27 September 2010 until 14 September 2012) the relevant national and divisional rules of the CFMEU were as alleged by the applicants, that is to say, they were in the form of the sets of rules comprising exhibit “AC-5” to the affidavit of Ailsa Jane Carruthers (an officer of FWA) affirmed on 14 September 2012. 61 I am so satisfied by reason of the matters set out in paragraphs 43-55 of Grocon’s written closing submissions filed 5 October 2012. In short, I accept that, to be valid and operative, the rules of a registered organisation such as the CFMEU were required to be kept registered with Fair Work Australia in a full and up to date form; that Ms Carruthers, by reason of her position and role at FWA, was able to identify and produce a copy of the relevant rules of the CFMEU as registered for the periods to which I have referred; and that she duly did so by means of her affidavit of 14 September 2012 and her supporting oral evidence.
63 Although, as Grocon submits, nothing further is required, I note that Grocon sets out in paragraph 57 of its written closing submissions certain additional grounds in support of the admissibility of the sets of rules identified by Ms Carruthers. Similar
58 See transcript (26 September 2012) 16, 22, 41 to 43. 59 Par 4.1 of the CFMEU’s closing written submissions filed 15 October 2012. 60 Transcript (18 October 2012) esp at 338 to 339. See also at 272 (lines 13-15), 310 (lines 18-20). 61 Exhibit P 27. The same rules also comprise the attachments to the covering certificates of Ms Carruthers at exhibits P 1 and P 2. SC: 33 JUDGMENT
grounds are also advanced by the Attorney-General in paragraphs 2.1 to 2.29 of Schedule 2 to his final written submissions filed on 5 October 2012. Although I need
not and do not rule on these additional grounds, I note that the CFMEU did not advance any argument to the contrary of any of them.
64 Turning to the office holders of the CFMEU, I am satisfied beyond reasonable doubt
that for the period from 28 August 2012 to 5 September 2012 (and indeed for the whole of the period from 1 January 2012 until 10 September 2012), the 13 persons
listed in the table set out in paragraph 64 of Grocon’s written closing submissions filed on 5 October 2012 held the CFMEU offices specified for them respectively in the
table. Those persons are David Noonan, Bill Oliver, John Setka, Ralph Edwards, Noel Washington, Elias Spernovasilis, Frank O’Grady, Shaun Reardon, Derek Christopher, Gareth Stephenson, Theo Theodorou, Danny Baradi and Craig Johnston. I am so satisfied principally by reason of the matters set out in paragraphs 58-69 of Grocon’s submissions. As those paragraphs state, the CFMEU, being a registered organisation, was required by s 230 of the FW(RO) Act to keep a record that contained a list of the offices in the organisation and each branch of the organisation, and a list of the names, postal addresses and occupations of the persons holding those offices. Once in each year, between 1 January and 31 March, the CFMEU was required to lodge with FWA a copy of those records, certified by declaration by the secretary or other prescribed officer of the organisation to be a correct statement of the information contained in the records – ie the “annual return” (s 233 FW(RO) Act). 62 The CFMEU was also required (by s 233(2) of the FW(RO) Act) to notify any change to the list of officials by lodgement with the FWA within 35 days. 63 Ms Carruthers has duly identified the annual return lodged by the CFMEU in 2012 which includes a comprehensive list of offices and officeholders within the CFMEU as at 1 January 2012. The abovementioned table of 13 persons is in accordance with the annual return. The evidence of Ms Carruthers establishes that no change was notified to FWA by the CFMEU in relation to any of the 13 persons in
62 See also reg 149 of the Fair Work (Registered Organisations) Regulations . 63 Regulation 151 of the Regulations. SC: 34 JUDGMENT
question up until 10 September 2012. It is true that, theoretically, there might have been a relevant change in the 35 day period between 5 August 2012 and
10 September 2012, being a change which the CFMEU, without breaching the 35 day limit, might have omitted to notify to the FWA. However, as I have already
mentioned, although the position of the CFMEU is that, generally speaking, its silence cannot be used against it in this case, its senior counsel frankly acknowledged that, in view of the evidence in the case, the silence of the CFMEU on the particular topics of the rules and the officials could appropriately be used against it to confirm
that “the officials were in effect agents of the CFMEU”. 64 Indeed, in relation to Mr Setka in particular, Mr Morrissey had earlier said: “It’s true that Mr Setka is an official, you will find on the evidence here, that you’d find that he is a CFMEU official”. 65
65 Once again, both Grocon and the Attorney-General advanced further or alternative submissions in support of the admissibility of the list of officials in the annual return, as updated by the evidence of Ms Carruthers. In particular, both submit that the list of officials is a public document within the meaning of s 156 of the Evidence Act 2008 (Vic) and thus admissible pursuant to s 48(1)(f) of that Act. Otherwise there is some divergence between Grocon and the Attorney-General in their further or alternative submissions as to the admissibility of the list of officials. For example, whereas Grocon initially relied upon certain certificates issued by Ms Carruthers pursuant to s 348 of the FW(RO) Act in respect of the list of officials, Grocon no longer does so. By contrast, the Attorney-General submits that those certificates do constitute further proof of the accuracy of the list of officials. Further, Grocon submits that the list constitutes a business record as contemplated by s 69 of the Evidence Act 2008 (Vic). The Attorney-General does not make that submission but does submit that certain of the certificates issued by Ms Carruthers and also the list of officials as at 1 January 2012 are admissible, pursuant to the Commonwealth Evidence Act , as a
Commonwealth record. Once again, I need not and do not rule on any of these
64 Transcript (18 October 2012) 338-339. 65 Transcript (18 October 2012) 272 (lines 13-15). SC: 35 JUDGMENT
additional or alternative grounds of admissibility for the list of officials, but, as before, I note that none of the submissions was challenged in any way by the
CFMEU.
The CFMEU: its relevant rules, structures and personnel
66 Because of the issues in these contempt applications, especially the issue as to
whether the presence or conduct of persons at the two building sites can be attributed to the CFMEU, it is necessary to refer to some particular rules of the
CFMEU, to its structures and to the positions and roles of the officeholders who feature in the evidence. The matters about to be mentioned are set out in paragraphs
76 to 98 of Grocon’s closing written submissions. They are not the subject of any challenge by the CFMEU.
67 Rule 1 identifies the name of the CFMEU. Rules 27 and 28 provide for the establishment of Divisions and Branches of the CFMEU. Pursuant to the definitions in rule 5, Divisions and Branches are established either under the CFMEU rules or by the national executive or national conference. Rule 27(ii) provides that each Division has autonomy to decide matters which do not directly affect the members of another Division without interference by any other body within the CFMEU in matters including the industrial interests of the members of that Division. Rule 27(ii) also confers autonomy on the Division in relation to its funds and property.
68 Rule 26 provides that the CFMEU’s rules are binding on the Divisions and Branches and the Divisional Branches and members. A Divisional Branch is defined in Rule 5 to be a geographic branch established under Divisional Rules by a Division established in accordance with the CFMEU rules.
69 I am satisfied beyond reasonable doubt that the CFMEU has a Construction and General Division (C & G Division). I note that the registered rules of the CFMEU include a set of rules for such a division. The C & G Division is the principally relevant part of the CFMEU for the purposes of the present case.
SC: 36 JUDGMENT
The rules of the Construction and General Division
70 I turn to the rules of the C & G Division. By rule 17 thereof, the C & G Division rules
are binding on Divisional Branches. Rule 18 establishes Divisional Branches. The CFMEU C & G Division, Victoria-Tasmania Divisional Branch (Vic Branch) is one
such Divisional Branch. 66
71 Neither the C & G Division nor the Vic Branch constitutes a separate legal entity.
Legally, both are merely part of the CFMEU.
72 The Divisional Secretary is the principal officer of the C & G Division. 67 At the relevant time the Divisional Secretary of the C & G Division was David Noonan.
73 The Divisional Branch Council is the highest deliberative body of the Divisional
Branch and has power to take such steps as it considers necessary to carry out all or any of the objects of the union and to raise or spend such funds as are necessary to carry out the objects of the Branch. 68 It directs the policy of the Divisional Branch. 69
74 The Divisional Branch Council directs the Divisional Branch Management Committee to carry out any of the provisions of the Rules or the performance of any duties that may be considered necessary. 70 It decides the number of organisers under provisions of the rules. 71
75 The Divisional Branch Management Committee has the care, control, superintendence, management and administration in all respects of the affairs, funds and property of the Divisional Branch and has all of the powers of the Divisional Branch Council. 72
76 The Divisional Branch Management Committee is responsible for the control and supervision of all officers. 73 It may delegate this responsibility in respect of
66 Rules 18(b)(i) and 28(b). 67 Rule 23(i). 68 Rule 40(4)(a). 69 Rule 40(4)(b). 70 Rule 40(4)(o). 71 Rule 40(4)(r). 72 Rule 42(c). 73 Each of the individuals listed in the next paragraph is an “officer”. SC: 37 JUDGMENT
nominated classes of officers to the Divisional Branch Secretary for the exercise of this responsibility on a daily basis in between meetings of the Divisional Branch
Management Committee on a temporary or ongoing basis and upon any terms or conditions the Committee sees fit. 74 (At the relevant time the Divisional Branch Secretary was Bill Oliver.) The Divisional Branch Management Committee also has the power to appoint temporary organisers. 75
77 At the relevant time the Vic Branch Divisional Management Committee consisted
of: 76
(a) The Divisional Branch President – Ralph Edwards (Edwards); 77
(b) The Divisional Branch Secretary – Bill Oliver (Oliver); 78
(c) The Divisional Branch Assistant Secretary – John Setka (Setka); 79
(d) Four Divisional Branch Vice-Presidents 80 , who include:
(i) Shaun Reardon (Reardon); and
(ii) Elias Spernovasilis (Spernovasilis); 81 and
(e) Twenty three others, who include:
(i) Derek Christopher (Christopher); and
(ii) Gareth Stephenson (Stephenson).
74 Rule 42(e). 75 Rule 42(r) 76 Rule 42(a)(v). 77 The Divisional Branch President has significant duties: see rules 46(a), (b), (c) and (g). Edwards was also joint Divisional Vice President of the C & G Division. 78 The duties of Divisional Branch Secretary are also significant: see rule 46. Oliver was also a Divisional Executive Member of the C & G Division. 79 Duties of Divisional Branch Assistant Secretary are set out at rule 47. Setka was also joint Divisional Senior Vice President of the C & G Division. 80 The duties of the Divisional Branch Vice President are set out at rule 44. 81 Spernovasilis was also Divisional Vice President of the C & G Division. SC: 38 JUDGMENT
In addition to the people just mentioned, the evidence identifies the presence, at least for a time, of each of the following officials at the Emporium site:
(f) a Branch Management Committee Member, Danny Baradi; and
(g) a Branch Council Member for the Melbourne Metropolitan Zone, Craig
Johnston.
78 Full time paid officers are under the control of the Divisional Branch Management
Committee between Divisional Branch Council meetings and are required to carry out all instructions of the Divisional Branch Council or Divisional Branch
Management Committee in accordance with the rules. 82 Each of the officials referred to in the previous paragraph and also Mr Noonan is an “officer” of the Branch. 83
79 The Divisional Branch Executive Committee has the care, control, superintendence, management and administration in all respects of the affairs, funds and property of the Divisional Branch in between meetings of the Divisional Branch Management Committee and subject to a review of the action by the Divisional Branch Management Committee. 84
80 The Vic Branch Divisional Branch Executive Committee consists of 9 people including (at the relevant time): 85
(a) The Divisional Branch President (Edwards);
(b) The Divisional Branch Secretary (Oliver);
(c) The Divisional Branch Assistant Secretary (Setka);
(d) The 3 Divisional Branch Vice-Presidents, who include:
(i) Reardon; and
82 Rule 49(b). 83 Rule 37(v)(a). 84 Rule 42A(iii). 85 Rule 42A(i). SC: 39 JUDGMENT
(ii) Spernovasilis; and
(e) 3 others from the FEDFA Division. 86
Grocon emphasises that of the 9 members of the Vic Branch Divisional Branch
Executive Committee, the 5 persons named in this paragraph were present from time to time at the Emporium site. 87
81 CFMEU organisers are under the control and supervision of the Divisional Branch
Management Committee and are required to carry out their duties within the provisions of the rules. 88 Their duties include visiting shops and jobs where
members of the Divisional Branch and other workers eligible to join are employed. Organisers are to endeavour to enrol new members. They are to carry out organisational work in any part of Victoria as directed by the Divisional Branch Management Committee. 89
82 It is the duty of union members to attend meetings and record their votes in all ballots and questions that are submitted to them by the authorised body in the Divisional Branch. 90
83 Members are to endeavour to improve the union and to see that all rules, including local or district registered working rules, are observed, and to cooperate with the officers and all Divisional Branch representatives accredited by the Divisional Branch Management Committee. However, no member is to be required to do or omit to do any act which would be a breach of applicable industrial legislation or of the award governing their work. 91
86 Grocon’s written closing submissions erroneously refer (at para 91(e)) to four (rather than three) others from the FEDFA Division. 87 Indeed they were present for considerable periods and were prominent and active, as indicated below. Grocon also points out that at various times during the period leading up to 28 August 2012, three of those five committee members were present at the Emporium site. 88 Rule 48(1)(a). 89 Rule 48(1)(b). 90 Rule 52(a). 91 Rule 52(c) and (d). SC: 40 JUDGMENT
84 Shop stewards or job delegates can be appointed by the Divisional Branch Management Committee or appointed by the members in such shop or job. Their
duty is to endeavour to enrol appropriate workers in their respective shops or jobs. They are responsible for the payment of money received by them to the Divisional
Branch and, from time to time, they may be required to submit a written report to the Divisional Branch Management Committee of the industrial conditions
pertaining to the shop or job. 92
Rule 31(g) of the CFMEU Rules
85 For completeness, I should mention rule 31(g) of the CFMEU rules, which provides
as follows:
The taking of industrial action (within the meaning of the Workplace Relations Act 1996 ), building industrial action (within the meaning of the Building and Construction Industry Improvement Act 2005 ) or picketing by members is not authorised by the union without the consent of a committee of management of the CFMEU (including any committee of management of a Division, Branch, Divisional or District Branch thereof).
Provided however that the preceding paragraph shall not restrict the right of a person or body duly authorised by such a committee of management to authorise industrial action in accordance with section 446(1)(a) of the Workplace Relations Act 1996 , or any successor provisions thereto.
86 In paragraph 4.1 of their written closing submissions, counsel for the CFMEU said that on the basis of the unchallenged evidence in this proceeding the Court “could find that the CFMEU is liable, if not exempted from liability by operation of Rule 31(g), for the acts of its officials”. However, my understanding is that, ultimately, counsel for the CFMEU abandoned any reliance on rule 31(g) as a source of any immunity or exemption from liability of the CFMEU. Certainly, counsel did not develop any submission based on rule 31(g). For example, counsel did not submit that the evidence relied upon by the applicants to show authorisation by the CFMEU of the conduct complained of suffered from some failure to reach the Vic Branch Divisional Branch Management Committee as distinct from, say, the Vic Branch
Divisional Branch Executive Committee. Moreover, towards the end of the hearing
92 Rule 57(a)-(d). SC: 41 JUDGMENT
on 18 October 2012, Mr Morrissey said that he believed his submissions were finished and I then mentioned that he had not said anything about rule 31(g). He
asked for and was granted an opportunity to consider that overnight. The next morning he began by saying that he had finished his submissions. He did thereafter
make some further submissions in relation to matters raised by the Court or by the applicants, but said nothing about rule 31(g). That is tantamount to an abandonment
of the point. Accordingly, it is not necessary for me to consider the submission by Grocon that, if the purported effect of rule 31(g) were to remove responsibility from
the CFMEU for conduct which was directly participated in by a majority of the members of the Divisional Branch Executive Committee, then the rule would be
contrary to s 142(1)(a) of the FW(RO) Act, which provides that the rules of an
organisation must not be contrary to law.
The Emporium site
87 The following findings relating to the Emporium site are based on matters that are either common ground or the subject of unchallenged evidence.
88 At all relevant times the third plaintiff, Grocon Constructors (Vic) Pty Ltd, was in occupation of the Emporium site, which was located at 269-321 Lonsdale Street, Melbourne. The land had formerly been the site of the well known Myer Lonsdale Street store. A new Myer Emporium was in the process of being constructed on the site. The dimensions of the site and the features of the immediately surrounding area were substantially as shown on the maps tendered by the CFMEU as exhibits D 1 and D 2. Generally speaking, the building site was bounded by Lonsdale Street to the north, Caledonian Lane to the east and Little Bourke Street to the south. The western boundary was irregular. Adjacent to the western boundary was land comprising in part serviced apartments and in part a “service area” for customers of the Myer Bourke Street store to attend in their vehicles and collect purchases. The
northern and southern boundaries of the Emporium site extended for a substantial part of the city block between Swanston Street and Elizabeth Street.
SC: 42 JUDGMENT
89 An overhead gantry had been constructed over part of the width of Lonsdale Street, including one vehicle lane and the footpath. It ran for most of the length of the
northern boundary of the site. Access to the gantry was via a set of stairs leading up from a point about halfway along the (enclosed) Lonsdale Street footpath. The
footpath beneath the gantry could be accessed from either the east or the west. The gantry housed a site office and also change rooms and lunch sheds for construction
workers employed directly by Grocon. The gantry also afforded access down to the building site itself. This was the normal point of access to the site for Grocon
employees and staff. Another overhead gantry had been constructed over Caledonian Lane. It was intended for use, and was normally used, by subcontractors
rather than direct Grocon employees. It contained facilities for the subcontractors
and, again, it afforded access down to the building site itself.
90 Putting aside the two gantries, there were four street level access points to the Emporium site. One of these was called Gate 1. It was located at the north-eastern corner of the site (the Lonsdale Street/Caledonian Lane corner), very near the point directly below the eastern end of the Lonsdale Street gantry. At the relevant time, Gate 1 was the place at which trucks entered the site to collect and remove excavated soil. During the relevant period Gate 1 would not have been a viable point of access to the site for workers on foot regardless of any incidents occurring directly in front of it. 93 On the other hand, Gate 1 was, as the applicants would have it, a strategic point, because it was very near the eastern end of the narrow enclosed pathway leading to the stairs by which access to the site via the Lonsdale Street gantry could be obtained, and also because it was very near the northern entry point to Caledonian Lane.
91 The other 3 ground level access points were from Little Bourke Street. One was at a loading bay. Another was at an indented part of the perimeter hoarding. The other was at the south-western corner of the site. These access points were not customarily used by the full time Grocon workers, because they did not lead conveniently to the
93 Transcript (26 September 2012) 65, (Buckley) 118-119 (McAdam). SC: 43 JUDGMENT
change rooms and the lunch sheds. Rather, these access points were used to allow crane dogmen into the site from time to time during the day. 94
92 In addition, there were 4 other points of connection or potential connection between
the Emporium site and the areas outside it. Each involved an underground tunnel. They were as follows:
• A tunnel connecting the Emporium site to the David Jones building located on
the opposite side of Little Bourke Street. This had a retaining wall made of vertical metal elements which obstructed passage through the tunnel and
which would take an hour to disassemble. 95
• A tunnel (labelled on a map of the site as “Ex Myer Tunnel B”) connecting to the Myer building on the opposite side of Little Bourke Street. Passage through this tunnel was obstructed by timber hoarding, which would take approximately 30 minutes to disassemble.96 There was a 5 metre drop at the end of the tunnel into the Emporium site. 97
• Another tunnel (labelled on a map of the site as “Ex Myer Tunnel A”) connecting to the Myer building on the opposite side of Little Bourke Street. Passage through this tunnel was obstructed by concrete “block-work”, which would take around 4 hours to disassemble. 98 Again, there was a 5 metre drop at the end of the tunnel into the Emporium site. 99
• A gate in a wall between the north-western corner of the Emporium site and the abovementioned Myer service area. 100 The gate had not been constructed by the Grocon group or any related company and was not intended for use, and had not been used, by Grocon for access to the Emporium site. 101 The
94 Transcript (26 September 2012) 98-99, 120, 136 (McAdam). 95 Transcript (26 September 2012) 99 to 100. 96 Transcript (26 September 2012) 101. 97 Ibid 135. 98 Ibid 101 to 102. 99 Ibid 135. 100 Ibid 102. 101 Ibid 105. SC: 44 JUDGMENT
Myer service area itself was accessible only by an underground tunnel and only by vehicle – pedestrian access was not permitted. 102
Grocon’s head office
93 The head office of the Grocon group is located on the first floor of the Queen Victoria Building which stands on the north-east corner of Swanston and Lonsdale Streets,
Melbourne.
The McNab site
94 The McNab building site is in McNab Avenue, Footscray. McNab Avenue
commences at a roundabout at its intersection with Napier Street. It is a dead end street. Trucks and other vehicles would customarily enter the McNab site via a gate known as Gate 2 located some distance along McNab Avenue. The only way for a truck or other vehicle to enter McNab Avenue, and thus the site, was via the
roundabout. 103 The McNab site was not the only workplace or place of business in McNab Avenue.
The witness McAdam
95 Apart from the photographs and the video and CCTV evidence, the main evidence relating to what happened at the Emporium site on the days in question came from the abovementioned Brian McAdam. As mentioned above, as Operations Manager, Victoria, for Grocon Pty Ltd, McAdam manages operations for all Grocon building projects in Victoria, including construction operations at the Emporium and McNab sites. I heard him give evidence on 3 September 2012, and again on 26 September 2012. 104 On 26 September 2012 he was cross-examined for some time by Mr Morrissey SC.
96 McAdam impressed me as a frank and reliable witness. He did not use colourful or inflammatory language. He made appropriate concessions. He seemed to be doing
102 Ibid 104. 103 Ibid 141. 104 As mentioned above, I am proceeding on the basis that the oral evidence given by McAdam on 28 August 2012 on the application for interlocutory relief is not before me for the purposes of the contempt applications and I have disregarded it completely. SC: 45 JUDGMENT
his best to assist the Court. He was giving his evidence quite soon after the happening of the events in question and he had generally been in a good position to
see what he reported. Indeed it seems that, from the outset, it had been a responsibility of his within Grocon to observe and note matters of relevance to the
case. Out of fairness to the CFMEU, I put to Mr Morrissey during final submissions that, subject to hearing from him, my impression was that McAdam had given his
evidence in a moderate and restrained way and that I was inclined to accept him as a reliable witness. 105 Mr Morrissey’s response was to the effect that there were facts alleged by McAdam about which I would be entitled to have doubt, but “without
impugning his honesty in the least”. 106 Mr Morrissey acknowledged that it had not been put to McAdam that he was a liar. Indeed, Mr Morrissey very fairly conceded that I would be entitled to rely on McAdam as a reliable source of facts, so far as they were within his knowledge. He further accepted that McAdam was not gilding the lily or exaggerating, but rather was simply calling things as he saw them. On the other hand, Mr Morrissey submitted that there was a question as to the value of the opinions that McAdam had formed on the ground. He gave as an example McAdam saying that a “majority” of persons were wearing CFMEU branded clothing whereas, according to Mr Morrissey, I would be able to see from the television footage that, while there were some such persons, they were not a majority. That did not mean, Mr Morrissey said, that McAdam was a liar. Rather, “that’s just what he saw, and that’s probably what he was looking for”. However, Mr Morrissey did not during this discussion (or otherwise) identify any particular passage of evidence given by
McAdam that was contradicted by television or video footage. Mr Morrissey may have had in mind the four items of television and video footage which are referred to in footnote 27 of the CFMEU’s closing written submissions. Those items are referred to there in support of the proposition contained in para 7.3 of the submissions that the “overwhelming majority” of the members of the crowd present in the vicinity of
the Emporium site on 28 August 2012 were not wearing CFMEU branded clothing. However that may be, and whatever those videos may be thought to show, McAdam
105 Transcript (19 October 2012) 327. 106 Ibid 328. SC: 46 JUDGMENT
has given no evidence to the effect that the majority of the members of that particular crowd were wearing CFMEU branded clothing. Mr Morrissey did not cross-examine
McAdam about any of the observations that McAdam did make about the wearing, on other occasions , of CFMEU branded clothing. Indeed Mr Morrissey did not
challenge McAdam on this general topic at all.
97 Mr Morrissey went on to submit that, although McAdam was Grocon’s chief witness, he knew nothing about any engagement by Grocon with the police or with
the CFMEU in relation to the steps intended to be taken on 28 August 2012 with respect to the Emporium site. 107 Mr Morrissey said that I did not have to find that
that was why McAdam was called, but that I should find that the Court has been specifically denied information of that kind. However, while there may be no evidence that McAdam himself was involved in any planning discussions between Grocon and the police in relation to the events of 28 August 2012, I am satisfied, for reasons I will explain in due course, that there was a joint Grocon/police plan to escort the Grocon workers to the Emporium site on 28 August 2012 and that McAdam was aware of it at the time. Similarly, there may be no evidence that McAdam was involved in any direct discussions with officials of the CFMEU about what might happen at the Emporium site on 28 August 2012, but McAdam had managerial responsibility for all Grocon construction operations in Victoria and, as will shortly appear, he also had information about the general stance of both sides in the underlying industrial dispute.
98 In the end, none of the matters referred to by Mr Morrissey in this connection causes me to discount significantly the evidence which McAdam actually gave.
The industrial context and events up to 27 August 2012
99 It would be artificial and inappropriate to consider the evidence relating directly to the pertinent events on the streets of Melbourne that occurred between 28 August and 5 September 2012 without first considering the evidence relating to the
107 Ibid 328-329. SC: 47 JUDGMENT
industrial context and certain connected earlier events. I turn to the process of making findings of primary fact in relation to those matters.
100 For some time prior to 28 August 2012, the Grocon group and the CFMEU had been
engaged in a bitter industrial dispute. According to what McAdam understood from Grocon’s industrial relations manager, the CFMEU had been demanding that the
Grocon group employ persons nominated by the CFMEU as shop stewards or as health and safety officers and Grocon was refusing to do this. 108 The CFMEU
characterised the industrial issues somewhat differently. 109 The dispute came to a head. On Friday 17 August 2012, as indicated above, Grocon went to Court. It
alleged that there was obstructive picketing at the McNab site and that the CFMEU was responsible for it. Grocon obtained from me a temporary order in relation to the McNab site. The order was extended by the Chief Justice in the Practice Court on Tuesday 21 August. On Wednesday 22 August 2012, as I have also mentioned, Grocon went back to the Practice Court. It alleged that obstructive picketing had begun at the Emporium site and that the CFMEU was responsible for it. It adduced detailed affidavit evidence in this regard. 110 Again, the CFMEU stayed away. The Chief Justice made the orders referred to above. Nevertheless, according to Grocon, obstructive picketing continued at the Emporium site. Work at the Emporium site certainly stopped. The industrial dispute between the Grocon group and the CFMEU remained unresolved. Tensions were high. A CFMEU-stamped flyer was handed to McAdam by a group of 3 persons near the Little Bourke Street entrance to the Myer department store on 23 August 2012. It proclaimed that construction of the Myer Emporium had ground to a halt and that: “It will be a long time before
108 Exhibit P 16 (supplementary affidavit of Brian McAdam sworn 27 August 2012 [15]). 109 See, eg Exhibit P 10 (exhibit GH 2), being a news article from the CFMEU website containing the following statement: “This dispute arose because Grocon does not recognise the right of workers to be represented by the union”; Exhibit P 23 (third affidavit of Gabrielle Hayward, exhibit GH 13), being a CFMEU publication containing the following: “Grocon dispute – what it’s about: key issues. CFMEU members are in dispute with Grocon over workers’ rights to representation on industrial and safety matters”. “Authorised by Dave Noonan, National Secretary, CFMEU Construction”. 110 See exhibit P 12 (Affidavit of Tino Degiusti dated 22 August 2012, paras 38, 41, 46, 47, 54, 55, 58, 60, 62 and 63 and exhibit TD 4 thereto). SC: 48 JUDGMENT
shoppers enjoy the new Myer Emporium unless Grocon changes its ways”. 111 In an affidavit sworn 27 August 2012, McAdam deposed that, since the commencement on
22 August 2012 of the behaviour at the Emporium site of which Grocon complained, Grocon had not directed its employees or contractors to attempt to enter the
Emporium site. McAdam proceeded in the affidavit to give the following unchallenged evidence, which I accept, as to McAdam’s observations at the
Emporium site and as to the nature of Grocon’s (and McAdam’s own) concerns in
this regard:
(a) Grocon is (and I am) concerned about the welfare of its work force and the health and safety of its employees and contractors; and
(b) Grocon considers (and I consider) that attempting to enter the Emporium Site will cause a risk to the health and safety of these persons, because the persons standing outside the perimeter of the Emporium Site as referred to above and in my First Affidavit are intimidating. I say this because:
(i) those persons stand in front of the gates and in the loading bay in large groups, very close together, often with arms folded, so that there is no path through to the Emporium Site;
(ii) the majority of those persons are wearing CFMEU branded clothing, and are quite largely built;
(iii) a portion of those persons are dressed in dark clothing, with hooded jumpers and dark glasses;
(iv) I have seen a number of those persons carrying metal bars and flag poles;
(v) a number of the locks on the gates to the Emporium Site have been glued; 112
(vi) persons wearing CFMEU branded clothing have handed out pamphlets that are very negative in the manner in which they refer to Grocon and its employees, including a pamphlet that named a number of Grocon employees as “scabs” and contained a logo of a double barrelled shotgun, with a sight and a cross hair, in the bottom right hand corner, with the words “scab hunter”. I picked up a copy of this pamphlet
111 Exhibit P 15 (affidavit of Brian McAdam sworn 24 August 2012, para 18 and exhibit ‘BM2’ thereto). 112 During submissions on 28 September 2012, albeit in relation to an earlier affidavit of McAdam which referred to glue being in a lock, counsel for Grocon accepted that that affidavit was not evidence upon which the Court could rely to make a finding as to any conduct attributable to the CFMEU itself. My understanding is that Grocon accepts that the same applies to any other reference in the evidentiary material to the gluing of locks, including the reference in the affidavit of McAdam sworn on 27 August 2012 presently under discussion. See transcript (28 September 2012) 194-195. SC: 49 JUDGMENT
from on top of the crane near Gate 1. I also picked up, from the same spot, another pamphlet which contained a CFMEU logo. Both pamphlets are attached and marked BM-3.113
The pamphlet to which McAdam first referred in this affidavit also contained the
words “Get rid of these scabs out of our industry, they will never be forgotten”. 114
101 Uncontradicted evidence establishes beyond doubt that several of the 13 persons
who are identified above as officials of the CFMEU were in attendance at the Emporium site from time to time on one or more of 22, 23 and 24 August 2012. 115
102 As to the events of Monday 27 August 2012, I accept the uncontradicted evidence of McAdam to the effect stated in the next 5 paragraphs. 116
103 McAdam’s office is located on the first floor of the Queen Victoria building, diagonally opposite a large window which affords a full view of Gate 1 to the Emporium site and the entrance to Caledonian Lane from Lonsdale Street. At approximately 6.30 am on 27 August 2012 McAdam looked out of this window and saw approximately 50 to 60 persons standing in front of, and around, Gate 1 to the Emporium site, the large majority of whom were wearing CFMEU branded clothing. Throughout the course of the morning McAdam regularly looked out this window towards the Emporium site. On every occasion, he saw approximately 50 to 60 persons, the majority of whom were wearing CFMEU branded clothing, standing in front of Gate 1, standing in the entrance to Caledonian Lane and standing along the north wall of the McDonald’s restaurant running between Caledonian Lane and
Swanston Street, including persons seated on the public bench on Lonsdale Street.
104 At approximately 9.00 am on 27 August 2012, McAdam attended a meeting with Grocon staff at head office. During this meeting, McAdam instructed 14 of his administration and management staff to attempt to enter the Emporium site via the
113 Exhibit P 16 (affidavit of Brian McAdam sworn 27 August 2012, paragraph 16 and exhibit ‘BM 3’ thereto). 114 Ibid. 115 Ibid. Exhibit P 12 (affidavit of Tino Degiusti dated 22 August 2012, paras 38, 41, 46, 47, 54, 55, 58, 60, 62 and 63 and exhibit TD 4 thereto). See also exhibit P 15 (affidavit of Brian McAdam sworn 24 August 2012, paras 5-11, 23). 116 See, principally, exhibit P 24 (third affidavit of Brian McAdam sworn 6 September 2012, paras 9-16). SC: 50 JUDGMENT
gantry entry located on Lonsdale Street. The 14 staff successfully entered the Emporium site office and were able to complete some administrative work in
preparation for an anticipated return to work on 28 August 2012.
105 Between approximately 1.00 pm and 1.30 pm on 27 August 2012, McAdam walked the perimeter of the Emporium site. At first he saw approximately 60 persons
standing in front of Gate 1, in Caledonian Lane and along the north wall of McDonald’s on Lonsdale Street, the majority of whom were wearing CFMEU
branded clothing. He then walked along Lonsdale Street. He saw approximately eight people standing in the vicinity of the western entrance to the enclosed footpath
and roadway. All of those persons were wearing CFMEU branded clothing. McAdam also saw another six or seven persons in an arcade on Lonsdale Street, all of whom were wearing CFMEU branded clothing. McAdam saw another four persons sitting in a nearby bar/café all of whom were wearing CFMEU branded clothing. McAdam proceeded to Little Bourke Street and observed that approximately 12 persons were standing near the western edge of the Emporium site gate. The majority of these persons were wearing CFMEU branded clothing. McAdam then crossed over Little Bourke Street to the opposite side and proceeded in an easterly direction. He observed a group of approximately 16 to 20 people in an alcove, as well as a further 20 people within the loading bay on Little Bourke Street, the majority of whom were wearing CFMEU branded clothing. He also saw approximately six to eight people in Caledonian Lane standing in the pedestrian entrance to the Mercure Welcome Hotel, the majority of whom were wearing CFMEU branded clothing.
106 McAdam looked out of the office window at various times between 1.30 pm and 3.00 pm and observed that the number of persons standing in front of Gate 1 on Lonsdale Street and near Caledonian Lane fluctuated between 40 to 60, the majority of whom were wearing CFMEU branded clothing. By approximately 4.00 pm on 27 August 2012, all of these persons had left.
SC: 51 JUDGMENT
107 Other than the 14 administration staff who entered the site office, no other Grocon employees worked at the Emporium site on 27 August 2012. Grocon employees who
would otherwise have worked at the Emporium site on 27 August 2012 were re- assigned to work on other Grocon sites or sent home. McAdam later viewed a
bundle of photographs which had been taken around the perimeter of the Emporium site on 27 August 2012. McAdam was able to identify three CFMEU officials in the
photographs, namely Shaun Reardon, Elias Spernovasilis and Craig Johnston. The photographs also show a barbecue blocking the use of the loading bay area in Little
Bourke Street. A red flag was attached to the hoarding beside the barbecue and there were many “100 percent union” CFMEU stickers attached to the hoarding.
The Emporium site: events on 28 August 2012
108 I turn to the events of 28 August 2012 at the Emporium site and to the process of making findings of primary fact in that regard.
109 Subject to the qualifications expressly mentioned below, I accept both the written and oral evidence of McAdam in relation to these events.
110 The normal starting time for major construction work in Melbourne, including at the Emporium site, is approximately 7.00 am. Workers and staff generally arrive in the change rooms, lunch sheds or site offices somewhat earlier than that. 117 On Tuesday 28 August 2012 McAdam got to his office on the first floor of the Queen Victoria building just before 6.00 am. He looked out of a window from which he had a full view of the corner of Swanston Street and Lonsdale Street, including Gate 1 and the Lonsdale Street gantry, to the north wall of the McDonald’s store and down
Swanston Street slightly. He saw a large group of people outside Gate 1. 118
111 Between approximately 6.30 am and 7.00 am there was also a group of about 30 men gathered near the corner of Little Bourke Street and Caledonian Lane, to the east of the loading bay, dressed in the manner of construction workers. 119 They were in
117 Transcript (26 September 2012) 136 (McAdam). 118 Transcript (3 September 2012) 94-95 (McAdam). 119 Exhibit P5, video 08E; transcript (3 September 2012) 62-63 (Knight). SC: 52 JUDGMENT
possession of a number of large “wheelie bins”.120 Shortly before 7.00 am the men moved the wheelie bins onto the roadway of Little Bourke Street, completely
blocking all vehicular traffic. 121 Little Bourke Street is a one-way street, with traffic heading in a westerly direction. 122 The makeshift road block would have prevented
any vehicular access to the loading bay of the Emporium site located to the west of the road block. This evidence is not relied on by the applicants as direct proof of any
of the charges laid, since the charges do not include any charge of blocking vehicular access to the Emporium site. However, video footage 123 shows persons rushing from this point towards Gate 1 at 7.00 am, which is an important time, being the exact
time of the clash between workers and police referred to below. Hence, as I gather, this material is relied on by the applicants as evidence of alleged coordinated action and of the existence and scale of the alleged “blockade”. 124
112 As at 28 August 2012 Grocon would ordinarily have had approximately 90 direct labourers working on the Emporium site, plus about 25 management and staff. 125 Shortly after McAdam arrived at head office there was a gathering of direct Grocon employees in a meeting room. McAdam says that the assembled direct employees numbered about 85 to 90 and that the management and other staff numbered about 25. In cross-examination he was challenged briefly about the numbers, but he substantially adhered to this evidence. 126 For reasons I will explain further when I come to the witness Senior Sergeant Buckley, I accept McAdam’s evidence as to the numbers. The gathering was addressed by two Grocon managers, namely John Van Camp and Jason O’Hara. According to McAdam, Van Camp and O’Hara asked for a group of five volunteers “to walk across and enter the site”.127
120 Ibid. 121 Ibid. 122 Transcript (3 September 2012) 58 (counsel, from the bar table). This is also evident from the video recordings and is a notorious fact of which judicial notice can properly be taken. 123 Exhibit P5, Video “MOV 090”, at approximately 12 mins 10 secs. 124 See, eg, Grocon’s written submissions dated 5 October 2012, para 149 and footnote 79 thereto. 125 Transcript (3 September 2012) 95-96 (McAdam). 126 Transcript (3 September 2012) 96-97 (McAdam), (26 September 2012) 111, 115, 117 (McAdam); cf transcript (3 September 2012) 62 (Buckley). 127 Transcript (3 September 2012) 96. SC: 53 JUDGMENT
113 Despite a later suggestion in submissions by the CFMEU that Grocon was less than wholehearted in its desire to get workers into the site, senior counsel for the CFMEU
did not squarely and directly put to McAdam in cross-examination that there was no genuine call for volunteers at this point or that McAdam was wrong as to the
purpose of the call for volunteers. I am satisfied beyond reasonable doubt about the correctness of McAdam’s evidence in these respects.
114 McAdam gave further evidence about these matters as follows. More than five
Grocon workers volunteered but five were chosen. At about 6.45 am the group of five accompanied Van Camp and O’Hara out of the meeting room. They descended
to ground level at the north east corner of Lonsdale Street and Swanston Streets. 128 In the meantime the numbers of persons near Gate 1 had been increasing. Over the next 10 to 15 minutes they grew to about 500. As a result, the Grocon managers felt that a larger presence was needed. 129 The Grocon managers asked the remaining construction workers, and also the Grocon management and staff members who were present, to join the 5 workers downstairs. All did so. As a result, Grocon had about 110 to 115 people, including McAdam, standing on the corner of Swanston and Lonsdale Streets under the Queen Victoria building. According to McAdam, the Grocon workers and staff were “waiting for the police signal to cross”. 130
115 There was some brief cross-examination of McAdam about the circumstances surrounding the move downstairs and a suggestion was made that Grocon’s purpose was merely to “show” the Grocon employees to the “excited workers” (as a kind of provocation). 131 I completely accept McAdam’s rejection of this suggestion. I am satisfied beyond reasonable doubt that the evidence of McAdam referred to in the previous paragraph is true.
116 Some 14 police officers on horseback were assembled in a line on the westbound side of Lonsdale Street between Swanston Street and Caledonian Lane. The horses
128 Transcript (3 September 2012) 97, 99; transcript (26 September 2012) 114-117. 129 Transcript (3 September 2012) 100; transcript (26 September 2012) 114-117. 130 Transcript (3 September 2012) 98. 131 Transcript (26 September 2012) 114-117, esp at 117. See also at 111. SC: 54 JUDGMENT
stretched from the southern kerb to the centre median strip of Lonsdale Street. There were also other police on foot carrying protective equipment. By this time the group
near Gate 1 had grown further to number approximately 600 to 700. 132 Many were wearing uniforms indicating that they were employees of other Melbourne
construction companies. McAdam stated emphatically in his oral evidence on 3 September 2012 that these 600 to 700 people did not include any Grocon
employees. .133 Under cross-examination on 26 September 2012 he qualified this statement slightly. I will come to this shortly.
117 Video and photographic evidence taken at or about 7.00 am shows a line of persons
just outside Gate 1, linking their arms. In the video, the CFMEU official Shaun Reardon can be seen immediately behind them. He is holding a camera. He says something to them and the people in the line immediately take off together, arms still linked, in an easterly direction up Lonsdale Street towards the line of horses. 134
118 McAdam’s evidence is that he was watching what was happening at this time. He saw what he calls a “surge” against the police line. 135 He saw “the police horses getting pushed backwards as a largish group of people surged towards them”. 136 He walked across Swanston Street and stood on the northwest corner of the Swanston Street/Lonsdale Street intersection, near a 7-Eleven Store located there. He was just behind the police horse line. McAdam was not challenged on any of this evidence and I accept it.
119 McAdam further says that, from his vantage point, he saw the abovementioned CFMEU official, John Setka, “running and directing his people in and around the police line”. 137 Again, McAdam was not cross-examined about this important piece of evidence. I am satisfied beyond reasonable doubt that Setka was running and
132 Transcript (3 September 2012) 98. 133 Ibid, 99. 134 Exhibit P 22 (affidavit of Buttazoni)at exhibit “CB 4”, image marked CH01, 704 x 576, 7FPS, 2012-08-28 07:01:26, video file 9. 135 Transcript (3 September 2012) 98. 136 Ibid. 137 Ibid, 101. SC: 55 JUDGMENT
directing people, being members of the assembled crowd, in and around the police line. Whether those people were aptly described as ‘his’ people does not matter.
120 Video footage shows that the physical confrontation involved not only the police on
horseback but also the police on foot. 138 Shaun Reardon was positioned next to a tree in Lonsdale Street at the height of the confrontation. Video footage shows him
reaching out and placing his left hand in front of a police horse. Shortly afterwards, he is seen in some distress after being struck in the face by a substance (presumably
capsicum spray) sent in his direction by a police officer. 139
121 As the video evidence also shows, the police on horseback eventually retreated north along Swanston Street, to the cheers and catcalls of the crowd. 140
122 As the situation continued, the numbers of persons gathered together near the corner of Swanston and Lonsdale Streets was increasing rapidly. I accept the estimate of McAdam that the crowd ultimately swelled to around 1000 people. 141 This is broadly consistent with the evidence (referred to below) of Senior Sergeant Jody Buckley of the Victoria Police, who was present at the time. It is also supported by the contemporaneous video footage,142 which also shows large groups of people walking quickly towards the intersection, mainly coming from the west along Lonsdale Street. The overwhelming majority of the persons walking to the scene and gathered together were dressed in the manner of construction workers. As a result of the presence of the crowd, the police closed Lonsdale Street from Elizabeth Street to Swanston Street. 143 On the other hand it is true, as the CFMEU points out, that the video evidence indicates that there were no persons (other than police) standing around the western entrance to the Lonsdale Street gantry at this time.
138 Exhibit P10, video “Police move in on Melbourne protest_3.mp4”. McAdam confirmed that the scenes depicted in this video (and in two other videos shown to the Court on 3 September 2012) took place on 28 August 2012: transcript (3 September 2012) 85, 86, 100. 139 Exhibit P10, “Workers stage peaceful rally in Melbourne” (Sky News clip); transcript (3 September 2012) 90. 140 Exhibit P 5, video “MVI_4181.AVI”. 141 Transcript (26 September 2012) 124-125. 142 See, eg, exhibit P 5, videos “MVI_4180.AVI” and “MVI_4181.AVI”. 143 Transcript (3 September 2012) 100 (McAdam). SC: 56 JUDGMENT
123 I return now to the issue whether the crowd included any Grocon employees. I accept the evidence of McAdam, adhered to under cross-examination, that he did not
recognise any Grocon employees within the crowd, either through his own observations on the day or in the extensive photographic and video material he had
subsequently seen. 144 Although McAdam fairly acknowledged that he could not exclude the possibility,145 there is no evidence before me that there were any Grocon
employees in the crowd at any stage. I am satisfied that there were either none or a negligible number only.
124 Asked by Grocon’s counsel whether there was any pathway at all clear from the
corner, McAdam’s answer was:
It was absolutely impossible for us to get from where we were across. As you’ve seen from the video footage from the news services, that is exactly the time when we were standing on the opposite corner. There was a surge against the police line. And so the road was blocked in both directions at that particular time. So the north line of Lonsdale Street was blocked. 146
This is yet another important piece of evidence on which McAdam was not cross- examined. I am satisfied beyond reasonable doubt that this answer gives an accurate picture of the scene near Gate 1 as at and shortly after 7.00 am. I repeat that I am similarly satisfied in respect of McAdam’s evidence to the effect that the five volunteers were to “walk across and enter the site”147 and also his evidence to the effect that, subsequently, the combined group of 110 to 115 Grocon workers and staff were “waiting for the police signal to cross”. 148 I will return to these matters when I come to deal with the final submissions of the parties.
125 Shortly after the police horses had retreated, a group of about six persons broke away from the main crowd. Most were wearing CFMEU branded clothing. 149 They walked diagonally across Swanston Street to where most of the Grocon staff and employees were standing on the north east corner. The CFMEU official, John Setka,
144 Transcript (26 September 2012) 124 (McAdam). 145 Ibid 125 (McAdam). 146 Transcript (3 September 2012) 100. 147 Ibid 96. 148 Ibid 98. 149 Ibid 102 (McAdam). SC: 57 JUDGMENT
was among them. So also was a Mr David Lythgow, who was known to McAdam as a CFMEU shop steward employed by Mirvac, another construction company. Both
of these individuals are “rather large”. 150 The two of them got within a metre or so of the Grocon people. They started to finger point and verbally abuse the Grocon
people. Setka called the Grocon workers “rats” and “dogs”. He said: “You fucking dogs. You should be over with us”. 151 Some of the Grocon workers tried to enter
into conversation with the Setka/Lythgow group. One got very close to Setka and said words to the effect: “We just want to go to work John. This is not our blue”.
Setka’s response was “You fucking dogs”. 152
126 Shortly after this, McAdam observed a female police officer approach the scene. It transpired that it was the abovementioned Senior Sergeant Jody Buckley, who later gave evidence in this case. In her evidence she said that she had been placed in charge of approximately 30 police officers who had been deployed to the vicinity of the Emporium site that morning. She received a radio call from another police officer, Inspector Jackson, to attend the footpath area outside the Queen Victoria building to request the Grocon staff to re-enter their office. 153 She observed “approximately 30” people there whom she identified as “Grocon workers”. However there is nothing to indicate that she had a particular reason to note how many Grocon workers were present. As I have mentioned, McAdam was later cross- examined about the numbers. 154 I am satisfied by his evidence that there had been approximately 110 to 115 Grocon workers and staff standing under the Queen Victoria building from about 6.50 am onwards. McAdam had been at the gathering of Grocon workers and staff that had taken place earlier on 28 August 2012 in the meeting room at the Grocon head office. So he had a clear basis to know, at least approximately, how many workers and staff there were. Otherwise, I accept Snr Sgt Buckley’s evidence. I accept that she approached the Grocon workers and in a loud voice asked them to go back into their office. She confirms that there were
150 Ibid 103 (McAdam). 151 Ibid 103-104 (McAdam). 152 Ibid 104 (McAdam). 153 Transcript (26 September 2012) 62. 154 Ibid 117-118. SC: 58 JUDGMENT
“some CFMEU workers”, “probably four or five of them”, standing to the side, having a discussion with a small number of Grocon workers. Indeed, she explained
that she had been requested to go over to that point because Inspector Jackson had told her something along the lines that a discussion had been occurring between
Grocon workers and CFMEU members. 155 Snr Sgt Buckley observed that most of the Grocon workers started dispersing and going back inside following her request. A
few were lingering back and she asked Mr Van Camp to ensure that they also returned inside. They were sent home within 10 or 15 minutes of returning to the
office area. 156
127 Apart from the reference to the call from Inspector Jackson, Snr Sgt Buckley did not further spell out in her evidence exactly why she had requested the Grocon managers to take the workers back upstairs. Nor did she say whether or not she had expressed a reason at the time. However the tenor of her evidence was certainly not inconsistent with the evidence given by McAdam under cross-examination, which I accept, to the effect that Senior Sergeant Buckley did at the time state a reason for her request, namely that (in her view) it was “unsafe” for the workers to remain where they were. 157 Further, I am satisfied that the Grocon managers themselves were concerned about the safety and welfare of the workers on this occasion and throughout the period when work at the Emporium site was not going ahead. I have already referred to my acceptance of McAdam’s evidence (in his affidavit of 27 August 2012) relating to the concerns felt up to 27 August 2012. I accept also the evidence given by McAdam (in cross-examination) to the effect that, at about 5.00 pm on 28 August, a decision was made to redeploy the Emporium site workers for the following day (29 August), “because we didn’t want to put them in the potential to be in a similar situation to the 28 th ”. 158
128 During cross-examination by Mr Morrissey, Snr Sgt Buckley was asked whether she had looked behind Gate 1 on that day. Her answer was “No, I couldn’t have got to
155 Ibid 64. 156 Transcript (26 September 2012) 122 (McAdam). 157 Ibid 121-122. 158 Ibid 126. See also, to the same effect, exhibit P24 (affidavit of McAdam sworn 6 September 2012) [40]. SC: 59 JUDGMENT
that gate on the day”. 159 In re-examination, Snr Sgt Buckley said, and I accept, that she could not see Gate 1 because of “the volume of people there”. 160 By this, she
clarified that she meant the volume of “CFMEU workers”. She was asked to say approximately what that volume was. Her answer was:
… it was wall to wall workers along Lonsdale Street from Swanston Street, the entire width of Lonsdale Street, but I don’t know how deep it went, but I would estimate the numbers at 800 to 1000. That would be my estimate without knowing how deep into Lonsdale Street it went. 161
This particular evidence of Snr Sgt Buckley supports the earlier evidence of McAdam that it was “absolutely impossible” for the Grocon workers to get across from where
they were. 162
129 At around 7.30 am, McAdam was walking west along Lonsdale Street. The road was still closed but was about to be re-opened by the police. McAdam says he saw and heard a senior CFMEU official, Ralph Edwards, addressing the crowd with a loud hailer. He says that Edwards said on the loud hailer “Here again tomorrow boys for more fun”. 163 McAdam was not cross-examined about this evidence. I am satisfied beyond reasonable doubt that it is true.
130 At about 7.47 am another CFMEU official, Derek Christopher, addressed the crowd with a loudhailer. Video evidence establishes that he said, among other things:
… and today, the CFMEU, ETU, the Metals and the rest of the unions, we must let them know, shoulder to shoulder, we stand; shoulder to shoulder, we will fight til the end; we’re here, going nowhere and stick to the guns 164
and
Stick around and hold the line; don’t drop for a coffee, because the minute they sense that we’re gonna lose our numbers, the minute they’re gonna come back. The enemy will be back and we must be standing ready. This is our gate, and our industry. 165
159 Transcript (26 September 2012) 64. 160 Ibid 65. 161 Ibid 66. 162 Transcript (3 September 2012) 100. 163 Ibid 101. 164 Exhibit P5 (Fair Work Commission video footage) at file 4223. 165 Exhibit P8 (Footage taken by David Gray) at file “NP2”. See also exhibit P10 (affidavit of Gabrielle Hayward) exhibit GH-1. SC: 60 JUDGMENT
Mr Christopher then led a chant of “The workers, united, will never be defeated”.
131 On the same morning a senior CFMEU official, Bill Oliver, addressed the media at the Emporium site, flanked by Messrs Reardon, Setka and Spernovasilis. Television
footage establishes that he said, among other things, words to the following effect:
We have been down here now for seven days. … We are back to the Supreme Court this morning. … This blue is about defending the rights of construction workers. 166
132 Later that same day the CFMEU published on its website an article entitled “CFMEU
members stand firm as Grollo sends in the cops”. At the bottom right hand corner of the article was a logo which read “CFMEU Construction and General Division
National Office”. The article included the following sentence:
CFMEU members showed they will not easily be moved from their protest against Grocon outside the Myer Emporium site in Melbourne’s CBD. 167
133 As indicated above, I accept that McAdam and others at Grocon decided at about 5.00 pm on 28 August 2012 to deploy to other sites, where possible, those Grocon employees who would otherwise have been working at the Emporium site on 29 August 2012, and that they did so out of concern for the safety and welfare of the workers. 168
The Emporium site: events on 29 August 2012
134 I turn now to the process of making findings of primary fact in relation to events at the Emporium site on 29 August 2012.
135 The account given by McAdam in his affidavit of 6 September 2012 in relation to these events was not challenged in cross-examination. Subject to the one qualification expressly mentioned below, I accept McAdam’s account and proceed accordingly.
166 Exhibit P10 (affidavit of Gabrielle Hayward), exhibit GH-7 (media footage). 167 Exhibit P24 (affidavit of McAdam), exhibit “BM-13”. 168 Exhibit P24 (affidavit of McAdam [40]); transcript (26 September 2012) (McAdam) 126. SC: 61 JUDGMENT
136 By 5.16 am on 29 August 2012, a crowd had gathered outside Gate 1 on Lonsdale Street. A still image extracted from CCTV footage taken from the opposite end of
Caledonian Lane shows the crowd extending across the intersection of Caledonian Lane and Lonsdale Street at that time.169 By 5.52 am a red CFMEU flag had been
attached to a loading bay fence. 170
137 McAdam deposes that, having arrived at his office at about 6 am, he observed at that time approximately 300 persons “blocking the roadway” between the McDonald’s
restaurant and Gate 1 on Lonsdale Street. 171 He further says that “there was no path through to Gate 1”. 172 There was no objection to the admissibility of these
statements, and, as I have indicated, McAdam was not cross-examined on them. They are broadly supported by a still photograph from CCTV footage taken of the area in front of Gate 1 at 6.03 am. 173 Subject to the ultimate question whether there was intentional obstruction of access to the site, to which I will come in due course, I am satisfied beyond reasonable doubt that there was no path through to Gate 1 at this time and that McAdam’s statement that the 300 persons were “blocking the roadway” at least gives a truthful and accurate picture of the way things appeared to him.
138 McAdam says, and I accept, that the crowd swelled to approximately 500 persons by about 6.45 am; that at about 6.50 am the crowd was chanting “The workers, united, will never be defeated”; and that news cameras were present at this time. 174 Video footage taken at 7.13 am shows a number of persons gathered along the footpath between McDonald’s and Gate 1. 175 It can be seen that many, at least, are wearing CFMEU clothing.
169 Exhibit P21 (affidavit of Alan Myall) exhibit AM-41. 170 Exhibit P8 (“NP-3”, photographs 1 and 2); exhibit P22 (affidavit of Claudia Buttazoni, exhibit CB5 (image ‘CH-02, 704 x 576, 25FPS, 2012-08-29, 05.52.25). 171 Exhibit P24, (affidavit of McAdam) [30]. 172 Ibid. 173 Exhibit P21 (affidavit of Alan Myall) exhibit AM-38. 174 Exhibit P24 (affidavit of McAdam) [30]. 175 Exhibit P19 (affidavit of Karl Swannack) exhibit “KAS 2”. SC: 62 JUDGMENT
139 By about 7.20 am the crowd had dissipated to approximately 100 persons. The vast majority of them were wearing CFMEU branded clothing. 176
140 At approximately 7.40 am a person wearing a CFMEU branded top climbed up and
attached a flagpole, to which was attached a black flag containing the letters “CFMEU”, to the overhead protection gantry adjacent to Gate 1. 177
141 At about 9.00 am persons wearing CFMEU branded clothing had commenced
cooking on a barbecue approximately 2 metres from Gate 1. There were approximately 60–80 persons in front of Gate 1, the majority of whom were wearing
CFMEU branded clothing. 178
142 Between approximately 11.00 am and 11.40 am McAdam walked the perimeter of the Emporium site. He observed 60 or so persons standing in front of Gate 1, about 20 persons standing along the loading bay on Little Bourke Street, about 10 persons standing along the gantry on Little Bourke Street and a further six persons at the end of the gantry. The majority of the persons in each of these groups were wearing CFMEU branded clothing. 179 In addition, there were approximately eight persons wearing CFMEU branded clothing sitting near the western entrance of the gantry on
Lonsdale Street. 180
143 At approximately 12.50 pm McAdam observed Elias Spernovasilis standing in front of the McDonald’s store on the corner of Lonsdale and Swanston Streets.
144 At approximately 12.55 pm there was a black SUV parked in the centre median strip of Lonsdale Street, approximately 7 metres from Gate 1. It had a “CFMEU Victoria” sign in the back window.181
145 At about 3.00 pm, McAdam looked from his office towards the Emporium site. He saw no-one standing in front of Gate 1. He set out on another walk around the
176 Exhibit P24 (affidavit of McAdam) [31]. 177 Ibid [32]-[33]. 178 Ibid [34]. 179 Ibid [35]. 180 Ibid [41]. 181 Ibid [37]. SC: 63 JUDGMENT
perimeter. He saw that copies of my order of 28 August 2012 had been posted at various locations around the perimeter fencing. He saw one copy in a number of
pieces on the door leading to the Emporium site gantry office on Lonsdale Street. 182 He observed that approximately eight persons wearing CFMEU clothing were still
sitting near the western entrance to the Lonsdale Street gantry. 183
146 A photograph and still images from CCTV footage taken that day show that at 5.52 am there were approximately 50 persons standing around a portable BBQ which
was set up in the loading bay on Little Bourke Street;184 that in the period between 7.16 am and 7.26 am there were about 30 there; 185 and that at other times between
6.28 am and 9.45 am there were about 20 there. 186
147 McAdam says in his affidavit of 6 September 2012 that, on both of the occasions on which he had walked around the perimeter on 29 August 2012, there had been “no
clear path into the Emporium site”. 187 In the affidavit he also says that, given his observations of the large numbers of people and their presence around the Emporium entrances, he believes that the direction he had given to employees on the previous evening not to attend for work at the Emporium site had proved to be appropriate, because “no one could have gained access to the Emporium site”. These expressions of view must, of course, be read subject to McAdam’s own statement in the same affidavit that there was no-one standing in front of Gate 1 at about 3.00 pm. They must also be read subject to McAdam’s acknowledgment in the affidavit that, eventually, on Friday 31 August 2012, some Grocon workers did gain access to the site with police assistance, apparently via a ground level entrance on Little Bourke Street. Further, they must be read subject to McAdam’s later acknowledgement that there were in total some six ground level entrances to the site as well as four underground tunnels leading to or towards the site (albeit that, except for the tunnel to the Myer service area, the tunnels were blocked up, and that none of
182 Ibid [39]. 183 Ibid [41]. 184 Exhibit P22 (exhibit CB 5, image “CH04, 704x576, 25FPS, 2012-08-29 05:52:25”) (taken at 5:52 am). 185 Exhibit P21 (exhibits AM-42, AM-43 and AM-44) (taken at 7:16am and 7:26am). 186 Exhibit P18 (exhibit NP3 photographs labelled 1 and 2) (taken between 6:28am and 9:45am). 187 Exhibit P24 [41]. SC: 64 JUDGMENT
the tunnels was under Grocon’s sole control.) Again, I will return to this matter in dealing with the ultimate question of whether there was intentional obstruction of
access to the site.
148 I accept the uncontradicted evidence of McAdam identifying the following officials as having been present at the Emporium site on 29 August 2012:188
(a) Derek Stephenson – standing with a group of approximately 12 persons
outside Gate 1;
(b) Shaun Reardon – walking up and down Caledonian Lane, together with a
person rolling up a black flag with CFMEU branding;
(c) Bill Oliver – walking north on Caledonian Lane and standing with two other persons in front of Gate 1 adjacent to Caledonian Lane;
(d) Elias Spernovasilis – standing within 1 to 3 metres of Gate 1 and walking along Caledonian Lane; and
(e) John Setka – standing with a group of approximately 10 persons around the east gantry entry on Lonsdale Street adjacent to Gate 1.
All of these attendances by the CFMEU officials were during the critical morning period, namely between 5.42 am and 7.22 am. 189 In addition, as already mentioned, Mr Spernovasilis was also observed to be present at about 12.50 pm standing in front of McDonald’s. 190
149 Between about 5.00 pm and 5.30 pm on Wednesday 29 August 2012, the Grocon employees who would otherwise have been working at the Emporium site on 30 August 2012 were instructed by telephone not to attend the Emporium site but rather to attend other Grocon sites for work on that following day. The decision to give these instructions was made by McAdam. I accept that he made the decision
188 See Attorney-General’s written submissions filed 5 October 2012, para 19.7 and the detailed footnotes thereto. 189 Ibid. 190 Exhibit P24 (affidavit of McAdam) [36]. SC: 65 JUDGMENT
because, in his view, it would not be safe for Grocon employees to attempt to enter the Emporium site to work on 30 August 2012. 191
The Emporium site: events on 30 August 2012
150 I turn now to the process of making findings of primary fact in relation to the events of Thursday 30 August 2012 at the Emporium site.
151 Again, the account of these events contained in the affidavit of McAdam of 6 September 2012 was not challenged in cross-examination. Subject to the one
qualification expressly mentioned below, I accept his account and proceed accordingly.
152 At approximately 6.00 am on 30 August 2012, McAdam arrived at Grocon’s head office. He walked to Swanston Street and observed a large group of persons in Lonsdale Street west of Swanston Street. The majority of these persons were wearing CFMEU branded clothing. There were approximately 12 police officers standing in and around the junction. 192
153 At approximately 6.05 am, McAdam observed that the police had blocked off Lonsdale Street at Russell Street. He also observed approximately 12 persons wearing CFMEU clothing walking in a westerly direction down Lonsdale Street towards the Emporium site. 193
154 At approximately 6.15 am, McAdam observed approximately 600 persons standing in front of Gate 1. Between 6.15 am and 6.35 am, the number swelled to approximately 1,200. I note that this is an even larger number than had attended on 28 August 2012. The majority of these persons were wearing CFMEU branded
clothing. 194 Video footage taken at about the same time 195 confirms that the crowd
191 Ibid [65]-[66]; transcript (26 September 2012) 129-130. 192 Exhibit P24 (affidavit of McAdam) [50]. 193 Ibid [51]. 194 Ibid [52]. 195 Exhibit P18 (affidavit of Popovski) (video “NP 2” 30.8.12 mpeg). SC: 66 JUDGMENT
was large. It spanned from one side of Lonsdale Street to the other. No vehicular traffic could pass along Lonsdale Street in either direction.
155 McAdam observed that the crowd was being addressed by an individual whom he
could not recognise. This person addressed the crowd with the use of a loud hailer for approximately 10 minutes. 196
156 At approximately 6.40 am, McAdam observed Shaun Reardon and Elias
Spernovasilis standing on the periphery of the crowd. They were both standing within approximately 30 metres of Gate 1. According to McAdam (in his affidavit of
6 September 2012), the crowd was “blocking the path through to Gate 1” and Reardon and Spernovasilis were part of that crowd. 197 McAdam further says that “[t]here was no clear path through to Gate 1 at this time”. 198 As I have already indicated, the CFMEU would now take issue with the import of these statements, but, again, its counsel did not object to the admission of the relevant part of McAdam’s affidavit nor did they cross-examine McAdam about the statements. Once again, subject to the ultimate question whether there was intentional obstruction of access to the site, I am satisfied beyond reasonable doubt that Reardon and Spernovasilis were part of the crowd, that there was no clear path through to Gate 1 at this time and that McAdam’s statement that the crowd was “blocking the path through to Gate 1” at least gives a truthful and accurate picture of the way things appeared to him.
157 At approximately 6.45 am McAdam observed John Setka standing on the corner of Lonsdale Street and Swanston Street. He was standing approximately 30 metres from Gate 1 to the Emporium site. He was also part of the crowd said by McAdam to be “blocking the path through to Gate 1”.199
196 Exhibit P24 (affidavit of McAdam) [53]. 197 Ibid [54]. 198 Ibid. 199 Ibid [55]. And see the previous paragraph above. SC: 67 JUDGMENT
158 Between approximately 6.45 am and 7.45 am, the crowd standing in front of Gate 1 decreased in number to around 60 persons, the majority of whom were wearing
CFMEU clothing. 200
159 At approximately 7.50 am, McAdam observed Elias Spernovasilis crossing Lonsdale Street pushing a shopping trolley which was filled with bread and other produce.
He was walking with another person and was heading down Swanston Street. 201
160 At approximately 10.20 am, McAdam left Grocon’s head office. He observed approximately 40 persons standing in front of Gate 1, the majority of whom were
wearing CFMEU clothing. They were standing next to a gas heater. 202
161 At approximately 10.25 am, McAdam drove to Little Bourke Street and observed a barbecue set up in the loading bay and approximately 10 persons, the majority of whom were wearing CFMEU clothing. He also observed a red flag with “CFMEU” written on it attached to the Grocon hoarding on Little Bourke Street. 203
162 At approximately 2.30 pm, there were approximately 20 persons standing in front of and adjacent to Gate 1 to the Emporium site. It commenced raining shortly after. At approximately 2.50 pm, McAdam looked outside his window and could not see any persons in front of Gate 1 or adjacent to Caledonian Lane. 204
163 At approximately 4.00 pm, McAdam left Grocon’s head office and walked the perimeter of the Emporium site with one of his colleagues. He did not see any person wearing CFMEU branded clothing at any point around the perimeter. 205 At approximately 4.30 pm McAdam returned to Grocon’s head office and gave instructions for cleaning and other tasks to be done at and in the vicinity of the
200 Ibid [56]. 201 Ibid [57]. 202 Ibid [58]. 203 Ibid [59]. 204 Ibid [60]. 205 Ibid [61]. SC: 68 JUDGMENT
Emporium site in preparation for a proposed commencement of work on 31 August 2012. 206
164 Photographs taken between 6.00 am and 11.00 am on 30 August 2012 broadly
support the evidence of McAdam relating to that period. 207 They show, as at various times within that period:
(a) approximately 200 to 300 persons standing across Lonsdale Street at the
junction with Swanston Street;
(b) approximately 100 persons standing near Gate 1; and
(c) approximately 300 to 400 persons standing across Lonsdale Street occupying the entire roadway.
165 Video security footage beginning at 6:36:27 am 208 records an unidentified male on a loudhailer encouraging the crowd at the Emporium site to chant various slogans, including:
We’re angry. We’re loud. We’re union. We’re proud.
This is followed by a chant which commences as follows:
Male on loudhailer: “People always ask us”
Crowd: “People always ask us”
Male on loudhailer: “Where do we come from?”
Crowd: “Where do we come from?”
Male on loudhailer: “We always tell them”
Crowd: “We always tell them”
Male on loudhailer: “We’re from the Union”
Crowd: “We’re from the Union”
206 Ibid [62]-[64]. 207 See and compare paragraph 184 of Grocon’s written submission filed 5 October 2012 and the footnotes thereto. See and compare, also, paragraph 20.2 of the Attorney-General’s written submissions filed 5 October 2012 and the footnotes thereto. 208 Exhibit P18 (affidavit of Popovski) exhibit NP-7, video NP 9 30.8.12. See Grocon’s written submissions, para 185 and the Attorney-General’s written submissions, paras 20.3 and 20.8. SC: 69 JUDGMENT
Male on loudhailer: “CFMEU”
Crowd: “CFMEU”
Male on loudhailer: “Here to stay”
Crowd: “Here to stay”
This chant continues with references to the “ETU” (Electrical Trades Union), then the
“Metals Union” and then to “every other union”. On each occasion the response is “Here to stay”. The same security video footage also shows that there was a red
CFMEU flag in the crowd and that at least some people in the crowd were wearing CFMEU branded clothing.
166 A range of evidence demonstrates, and it is not disputed, that there were the following attendances by CFMEU officials at or near the Emporium site during the morning of Thursday, 30 August 2012: 209
(a) Messrs Reardon, Spernovasilis and Setka were part of the crowd in front of Gate 1 at approximately 6.40 am to 6.45 am;
(b) Shaun Reardon was standing in Lonsdale Street (approximately 30 metres from Gate 1) and was part of a crowd of persons, a number of whom were wearing CFMEU branded clothing;
(c) Messrs Spernovasilis and Setka were seen standing in Swanston Street outside Wonton House (between Little Bourke and Lonsdale Streets);
(d) Spernovasilis, together with a number of other persons, was also seen standing in Lonsdale Street speaking with Mr Reardon;
(e) Spernovasilis was later seen crossing Lonsdale Street and heading down Swanston Street pushing a shopping trolley filled with bread and other produce;
(f) Setka was seen walking with a group of persons;
209 See and compare Attorney-General’s written submissions dated 5 October 2005, para 20.4 and the footnotes thereto. SC: 70 JUDGMENT
(g) Spernovasilis was seen walking along Caledonian Lane;
(h) Reardon was seen walking along Caledonian Lane.
167 In addition, CCTV images obtained from security cameras installed at the Emporium
site show, and it is not disputed, that during the morning of Thursday 30 August 2012: 210
(a) Spernovasilis was walking in the loading bay on Little Bourke Street, with a
barbecue behind him and approximately 30 persons standing around; and
(b) Setka was in the loading bay on Little Bourke Street, with a barbecue behind
him and approximately 30 persons standing around.
168 At approximately 10.00 pm on Thursday 30 August 2012, McAdam learnt that other Grocon managers had decided to attempt to get a bus load of Grocon employees into the Emporium site the next day with assistance from police. 211
Emporium site: events of 31 August 2012
169 Next I turn to the process of making findings of primary fact in relation to the events at the Emporium site on Friday 31 August 2012.
170 Yet again, McAdam’s account of these events, as set out in his affidavit of 6 September 2012, was not challenged in cross-examination. I accept it without qualification, and proceed accordingly.
171 At approximately 5.00 am on 31 August 2012, McAdam was driving along Russell Street and observed that Little Bourke Street had been blocked off by police. He also observed that Lonsdale Street had been blocked off by police. He arrived at Grocon’s head office at approximately 5.15 am. From the window in the office he observed that a group of approximately 400 persons were gathered on the corner of Swanston Street and Lonsdale Street. Police had erected a barricade abutting the
210 Ibid, para 20.6 and the footnotes thereto. 211 Exhibit P24 (affidavit of McAdam) [73]. SC: 71 JUDGMENT
wall of McDonald’s and extending across Lonsdale Street along the median strip to the overhead gantry. The fencing extended approximately 6 metres from
Caledonian Lane from the east.212
172 McAdam observed approximately 20 mounted police officers distributed across the junction of Swanston Street and Lonsdale Street. He also saw approximately 80
police officers behind the fence, separating the crowd from the area adjacent to Gate 1 to the Emporium site. The majority of the persons in the crowd were wearing
CFMEU branded clothing. It was raining heavily at this time and continued to rain until approximately 7.30 am. 213
173 At approximately 6.30 am, McAdam observed that the crowd at the corner of Swanston Street and Lonsdale Street had swelled to approximately 800 to 1000 people (excluding police). Around 50 percent of those persons were wearing CFMEU branded clothing. McAdam saw the CFMEU official, Ralph Edwards, addressing the crowd from the back of a utility vehicle parked on the north side of
Lonsdale Street. Large white speakers had been affixed to this vehicle. 214
174 At this time, McAdam also saw John Setka, Shaun Reardon, Elias Spernovasilis, Bill Oliver and Frank O’Grady (CFMEU officials) who were all standing together on the corner of Lonsdale Street and Swanston Street, on the east side of Swanston Street. 215 At approximately 7.02 am, McAdam observed Elias Spernovasilis standing on the west side of Swanston Street in Lonsdale Street. He was standing within 25 metres of Gate 1. 216
175 At approximately 7.04 am, McAdam learnt that a busload of approximately 30 Grocon employees had been able to access the Emporium site and were going to commence work. He later learnt that they were conducting preparatory work such
212 Ibid [74]. 213 Ibid [75]. 214 Ibid [76]. 215 Ibid [77]. 216 Ibid [78]. SC: 72 JUDGMENT
as a review of safety, access ways, and hand rails to the basement area, in order that productive work could commence. 217
176 At approximately 7.14 am McAdam observed Shaun Reardon standing beside the
utility vehicle used by Ralph Edwards who was addressing the crowd. This utility vehicle was parked approximately 30 metres from Gate 1. 218
177 At approximately 7.30 am McAdam observed David Noonan (a senior CFMEU
official) standing on the east side of Swanston Street speaking to news crews. McAdam also observed Bill Oliver (another senior CFMEU official) standing on the
west side of Swanston Street speaking to other news crews. Oliver was within 30 metres of the perimeter of the Emporium site. McAdam observed Shaun Reardon standing adjacent to Oliver while he was speaking to news crews. 219
178 At approximately 8.28 am McAdam observed Elias Spernovasilis standing on the corner of Swanston Street and Lonsdale Street near McDonald’s. Spernovasilis was speaking with Ralph Edwards and was standing close to a group of other persons, the majority of whom were wearing CFMEU branded clothing. Spernovasilis was standing approximately 25 metres from the perimeter of the Emporium site. At about this time, Spernovasilis was joined by another CFMEU official, Craig Johnston. 220
179 Between approximately 8.00 am and 8.30 am, the crowd had dissipated to approximately 120 to 150 persons. At approximately 8.40 am, Victoria Police opened the eastbound traffic lane 221 .
180 At approximately 9.00 am, McAdam observed that there were three black flags containing the letters CFMEU located on top of the fence which had been erected by Victoria Police in front of Gate 1. 222
217 Ibid [79]. 218 Ibid [80]. 219 Ibid [81]. 220 Ibid [82]. 221 Ibid [83]. 222 Ibid [84]. SC: 73 JUDGMENT
181 Shortly after 9.00 am, McAdam left Grocon’s head office and went down to the corner of Swanston Street and Lonsdale Street. He walked along the northern
footpath of Lonsdale Street parallel to the Emporium site. He observed approximately 80 persons standing in the street, the majority of whom were wearing
CFMEU branded clothing. He crossed Lonsdale Street at the western end of the overhead protection gantry and observed approximately 150 police officers standing
in the road way under the gantry. This number was in addition to the police presence on the eastern side of the overhead gantry on Lonsdale Street. 223
182 McAdam walked around to Little Bourke Street and saw that approximately 40
police officers were standing in the road way and on the footpath in Little Bourke Street. 224
183 At approximately 9.20 am, McAdam observed Elias Spernovasilis carrying bags of bread and other produce along Lonsdale Street. Spernovasilis approached the barbecue that was set up in the westbound traffic lane on Lonsdale Street. Persons were using this barbecue to cook food. At this time, Spernovasilis was standing within 10 metres of the perimeter of the Emporium site. 225
184 McAdam returned to Grocon’s head office at approximately 9.25 am. 226
185 At approximately 12.50 pm McAdam observed 40 persons standing on the outside of the fence erected by the Victoria Police, the majority of whom were wearing CFMEU clothing. 227
186 By approximately 1.30 pm, McAdam observed that the Victoria Police had removed the fencing that they had erected around Gate 1. Approximately 40 to 50 persons were standing in front of Gate 1, many of whom were wearing CFMEU clothing. 228
223 Ibid [85]. 224 Ibid [86]. 225 Ibid [87]. 226 Ibid [88]. 227 Ibid [89]. 228 Ibid [90]. SC: 74 JUDGMENT
187 At approximately 2.30 pm, McAdam observed that there were no longer any persons standing in front of Gate 1. 229
188 The 30 Grocon employees who had been transported into the Emporium site via
buses that morning were escorted out of the Emporium site by approximately 12.30 pm. Based in part on the numbers of persons gathered around the site,
McAdam, together with other Grocon management, decided that no Grocon employees would attempt to enter the Emporium site on the afternoon of 31 August
2012. 230
189 McAdam did not see any person that he recognised as a Grocon employee standing in front of the entrances to the Emporium site at any time on 29, 30 or 31 August 2012. 231
190 Video footage confirms that, by the early hours of 31 August 2012, a crowd had gathered at the Swanston Street end of Lonsdale Street; that the crowd was kept some distance from the Emporium Site by a series of temporary fences outside its eastern and north-eastern boundaries; and that approximately 80 police officers were positioned between the temporary fences and the site. 232
191 Video footage also confirms that at 5.24 am the crowd numbered at least 100;233 that, by 6.26 am, the crowd was dense and spanned in a western direction from Swanston Street down Lonsdale Street;234 and that, at this time, no vehicular passage was possible on Lonsdale Street. 235 This was in part because of the temporary fencing, but also because of the large group of static persons. Another video shows that at
229 Ibid [91]. 230 Ibid [92]. The CFMEU points out that the contempt charges in respect of events at the Emporium site on 31 August 2012 relate only to the period up to 1.30 pm. However, that does not make irrelevant the fact that the numbers of persons gathered around the site was a factor in the making of the decision that no Grocon employees would attempt to enter the site that afternoon. 231 Ibid [93]. As already mentioned, this was also the case with respect to 28 August 2012. 232 Exhibit P 18 (affidavit of Popovski) exhibit NP-7 (video “MVI_8635_PAL_DVD.mpeg”). 233 Ibid (video “MVI_8635_PAL_DVD.mpeg”). 234 Ibid (video “MVI_8672_PAL_DVD.mpeg”). 235 Ibid. SC: 75 JUDGMENT
7.20 am members of the crowd were gathered on the road at the intersection of Swanston and Lonsdale Streets, blocking traffic along both streets. 236
192 Photographs taken at around the same time show large numbers of persons standing
close to each other in Lonsdale Street west of Swanston Street. 237
193 A range of evidence establishes, and it is not disputed, that the following officials of
the CFMEU were in attendance at the Emporium site during the morning of 31 August 2012: 238
(a) Mr Edwards (who, as mentioned above, addressed the crowd from the back
of a utility vehicle parked on the north side of Lonsdale Street);
(b) Mr Setka;
(c) Mr Reardon;
(d) Mr Spernovasilis;
(e) Mr Oliver;
(f) Mr O’Grady; and
(g) Mr Noonan.
194 Further, video footage establishes, and it is not disputed, that the senior CFMEU official, Mr Edwards, 239 in addressing the crowd with a loudhailer from the back of the white utility vehicle, spoke the following words at the times specified below respectively:
5.42 am We are here to stay. We have laid siege, we have laid siege to this job and we’re not going away … We’re not here to have a brawl … We
236 Exhibit P 19 (affidavit of Swannack) exhibit KAS 2 (video “Lonsdale St 31Aug12 0720.mpg”); Exhibit P 22 (affidavit of Buttazoni) exhibit CB 8 (photograph labelled “2.”). 237 Exhibit P 18 (affidavit of Popovski) exhibit NP-5 (photographs 1, 2, 3, 4, and 14). 238 See written submissions of the Attorney-General dated 5 October 2012, para 21.3 and the footnotes thereto. 239 Edwards is identified by McAdam in relation to each piece of video footage: see exhibit P25 (affidavit of McAdam) [5]. SC: 76 JUDGMENT
are disciplined, we are organised, and that’s what got us the wages and conditions that this industry pays. 240
5.45 am They want you come here for the next two days, for the next two weeks, for the next two months, for the next two years it’s going to be a long job, right? They’re behind now. Daniel Grollo’s, well, he’s up shit creek. He’s behind now … The government wants to have a brawl with the unions … They don’t like unions that do what we do – produce good wages and conditions. 241
5.50-5.51 am We ain’t going away … we ain’t going nowhere … two days, two weeks, two months – here to stay. Right? If you’ve got a problem, don’t bring it here because it’s nothing to do with the unions. We’re not going away. Whatever provocation occurs, laugh at ‘em. Why? Because we should be happy. The police have shut down the city for us. Here to stay, right? (this was met with cheers). 242
7.32-7.34 am CFMEU/here to stay; ETU/here to stay; all our guests from other unions/here to stay; all unions/here to stay … folks, we will have, I’m sure, plenty more meetings, you’ll have to get used to me [inaudible] microphone [inaudible] but never mind. Folks, thank you very much, you’ve done yourselves a treat … thank you everyone. We’ll wander back to work [inaudible] one way. Congratulations, you’ve done yourselves a treat. 243
The McNab site: events on 5 September 2012
195 I come now to the making of findings of fact in relation to the events at the Grocon building site in McNab Avenue, Footscray, on Wednesday 5 September 2012.
196 The evidence relating specifically to the relevant events at the McNab site on 5 September 2012 comes from two sources:
(a) Mr Jamie Rigg, Grocon Pty Ltd’s Project Manager at the McNab site, who affirmed an affidavit dated 6 September 2012, the exhibits to which comprise a
map of the site, two items of CCTV footage taken from a Grocon security camera at the site and some still images taken from the CCTV footage. Rigg also gave oral evidence, and was cross-examined, on 26 and 27 September 2012;244 and
240 Exhibit P18 (affidavit of Popovski) exhibit NP 7 (video 8645). 241 Exhibit P18 (affidavit of Popovski) exhibit NP 7 (video 8648). 242 Exhibit P18 (affidavit of Popovski) exhibit NP 7 (video 8655). 243 Exhibit P18 (affidavit of Popovski) exhibit NP 7 (video 8702). 244 Transcript (26 September 2012) 140-148; (27 September 2012) 163-169. SC: 77 JUDGMENT
(b) Sergeant Robert Thompson of the Victoria Police, who gave oral evidence on 26 September 2012.245 In the end, Mr Morrissey asked him no questions.
197 At the time when the affidavit of Jamie Rigg was filed, Grocon was pursuing charges
of contempt of court in respect of the McNab site both in relation to vehicles and in relation to Grocon workers on foot. As already mentioned, the latter charges have
since been abandoned. Insofar as the affidavit of Mr Rigg refers to matters relating to the Grocon workers who were due to walk into the McNab site that morning,
those matters are relevant only to the extent that they bear on the extant charges.
198 The parties arrived at an agreed position in relation to the way in which certain other aspects of the evidence relating to the McNab site charges should be treated. The agreement is recorded on transcript 246 and I have proceeded in accordance with it. It involves the striking out of paragraphs 36 and 38 and placitum (x) of paragraph 42 of Rigg’s affidavit of 6 September 2012. It also involves certain other points that require a little explanation. For this purpose, some background is helpful. The matters set out in the next two paragraphs are not in dispute.
199 At about 6.40 am on 5 September 2012, a large white semi-trailer truck travelled along Napier Street and approached the roundabout at the intersection with McNab Avenue, stopping just short of the roundabout. In the general vicinity at the time were Rigg, six police officers (including Sergeant Thompson), the CFMEU officials Setka and Reardon, and 30 or 40 other men. Some men from the group of 30 or 40 approached the driver of the white truck and spoke to him. The truck remained more or less in the same spot in Napier Street for about 15 minutes before being driven away. While it was still there Sergeant Thompson had a conversation with the driver which he later recounted in his evidence.
200 At approximately 8.03 am on the same morning, a truck of similar appearance, said by the applicants to be the same truck, approached McNab Avenue from a different direction and stopped within the roundabout when a man from the group of 30 or 40
245 Transcript (26 September 2012) 73-77. 246 Transcript (28 September 2012) 196 to 199; (18 October 2012) 333-336. SC: 78 JUDGMENT
stood in front of it. After about 5 minutes this truck drove away. The CFMEU does not admit that this was the same truck as before or that it had the same driver.
Sergeant Thompson gave no evidence about any conversation with the driver of the truck that arrived on the second occasion.
201 Neither party has called the driver(s) of the truck(s) or any witness from the
company(ies) for which the driver(s) worked. However, it has been agreed that the absence of evidence from these sources does not give rise to any Jones v Dunkel type
inference in this case. On the other hand, it has been agreed that nothing said by the driver of the truck that arrived on the first occasion (as related by Sergeant
Thompson) is admissible to prove the state of that truck driver’s mind or to prove the truth of any of his statements. What that driver said is admissible only for a non- hearsay purpose, ie as background, to enable what was said by Sergeant Thompson during the conversation to be understood. Further, it is agreed that statements in the affidavit of Rigg to the effect that the driver of the truck that arrived on the second occasion had earlier made an “attempt”, and was now making a second “attempt”, 247 to deliver reinforced steel to the McNab site, are not themselves evidence of the state of mind of the driver.
202 There is no challenge by the CFMEU to the credit of Rigg or Thompson.
203 Rigg’s evidence, including his affidavit evidence, was based partly on his own direct observations at and in the vicinity of the McNab site on the morning of 5 September and partly on the two CCTV recordings, both of which he had viewed.
204 Parts of the CCTV footage were shown in court during the hearing. I have subsequently watched the whole of both recordings in chambers, as the parties agreed I should.
205 The CCTV footage records that approximately 10 men were congregating at the entrance to McNab Avenue at 5.15 am. I accept Rigg’s unchallenged evidence, being evidence based exclusively on his viewing of the video, that a number of those men
247 Exhibit P26 (affidavit of Rigg) [41]-[42]. SC: 79 JUDGMENT
were wearing CFMEU branded clothing;248 that the abovementioned Shaun Reardon could be observed arriving at 5.15 am, 249 and that, at or around 6.10 am, there were
approximately 30-40 men congregated at the entrance to McNab Avenue. 250
206 The findings of fact set out in the next 5 paragraphs are based on unchallenged evidence given by Rigg from his own direct observations and knowledge.
207 Rigg had concerns for employees who were required to enter and work at the
McNab site on the morning of 5 September 2012. Therefore, at approximately 6.05 am, he caused the employees to be telephoned and told that they should not attempt
to enter the site via the McNab Avenue entrance but rather to meet at the footbridge at the Footscray Station end of McNab Avenue (the opposite end to where the other men were then congregating). 251
208 At approximately 6.35 am Rigg himself arrived for work at the Footscray Station footbridge where approximately 12 employees who were to work at the McNab site on that day were waiting. 252
209 From the footbridge Rigg could see a group of approximately 10 men congregating at Gate 2 of the McNab site. 253 Gate 2 is located in McNab Avenue about two thirds of the way along the edge of the site. It is the gate used by trucks to enter the site. 254 From the footbridge Rigg could also see about 40 men congregating at the entrance to McNab Avenue. 255
210 Rigg also observed one “Monjon” security guard and one police officer at Gate 1, which is located in McNab Avenue near Gate 2.
248 Exhibit P26 (affidavit of Rigg) [8]. 249 Ibid [10]. 250 Ibid [11]. 251 Ibid [12]. 252 Ibid [13]. 253 Ibid [14]. 254 Transcript (26 September 2012) 141 (Rigg). 255 Exhibit P26 (affidavit of Rigg) [14]. SC: 80 JUDGMENT
211 A delivery of reinforced (or “reinforcing”) steel was scheduled to be made by a third party supplier to the McNab site by 7.00 am on Wednesday 5 September 2012. 256
212 As already indicated, Rigg’s evidence relating to the first truck arrival was based
partly on his own observations and partly on his viewing of the CCTV footage. His evidence in this regard was not challenged in cross-examination. I accept it, and I
make the findings of fact set out in the next two paragraphs accordingly.
213 The semi-trailer truck arrived at approximately 6.40 am, as mentioned above. At that time there was not enough room for the truck to enter McNab Avenue because
of the 30 to 40 men congregating at the entrance to McNab Avenue. The position of the truck when it stopped was approximately 30 metres from the nearest point of the fence line of the McNab site which in turn was at the entrance to McNab Avenue. After the truck stopped, Reardon and the abovementioned Setka (both CFMEU officials) stood at the front driver’s door of the truck. The truck remained where it was for the time being. While the truck was stopped there, a white utility vehicle arrived and entered the roundabout. Some of the men from the group of 30 to 40 men stood in front of the white utility, causing it to stop. They spoke with the driver. The men then moved to the side of the white utility and allowed it to drive down McNab Avenue. After that, a police officer approached the truck and spoke with the driver of the truck. Reardon and Setka remained adjacent to the driver’s side of the truck. To the extent that Rigg had seen these particular events with his own eyes, he had seen them from the Footscray Station footbridge. He then told the
Grocon employees to wait on the footbridge. He walked down to Gate 1. He attempted to open Gate 1 but it was locked. He then spoke to a female police officer who was standing near Gate 1. He said to her words to the effect:
I am Jamie Rigg, the project manager at this site for Grocon. My employees are trying to come to work and are congregated at the footbridge until I can open the gates and safely get them in .
256 Ibid [17(xii)], [41] and [42]. SC: 81 JUDGMENT
The female police officer replied with words to the effect: “You will need to speak with the sergeant”. She then indicated that the Sergeant was at the entrance to
McNab Avenue. Rigg then walked up to the McNab Avenue entrance and waited for the sergeant, whom he saw speaking with the driver of the white truck. As he
was waiting for the sergeant, Setka and Reardon called him a “rat” and a “dog” and said to him: “You eat Pal dog food”. At around this time Reardon made an address
to the group of 30 to 40 men. The sergeant then walked back to the fence line of the McNab site where Rigg was waiting. The sergeant was the abovementioned
Sergeant Robert Thompson. Rigg then had a conversation with Sergeant Thompson. Rigg said words to the following effect:
A number of employees are waiting at the footbridge to come in and as you can see the truck and a number of other suppliers and subcontractors would be needing to get in shortly.
Rigg also said to Sergeant Thompson words to the following effect:
The men blocking us from doing this are in breach of the court orders that we have in place for the site and that are posted on the fence at Gate 4.
Gate 4 is located at the corner of the McNab site adjacent to the roundabout. Rigg further said to Sergeant Thompson words to the following effect:
Shaun Reardon and John Setka in particular are not allowed within 50 metres of the site and they are here breaching that order. The Court orders prevent the CFMEU from hindering, obstructing or impeding us doing our work and they are clearly doing this now. 257
214 Sergeant Thompson then made certain replies and comments to Rigg which, the parties have agreed, are admissible only for a non-hearsay purpose. They are not tendered as evidence of the truth of what Sergeant Thompson said. What Sergeant Thompson said was:
I saw a service man earlier trying to enter the street to service the generator had been turned away by the mob. We are outnumbered and wouldn’t be in a position to push through the men.
257 These representations overstated somewhat the effect of the orders of the Court. SC: 82 JUDGMENT
Rigg then replied that Grocon did not expect the police to try and break through the men. Rigg said words to the following effect:
Our employees are on the station footbridge and are wanting to enter the site but we won’t let them do so unless it is safe.
Sergeant Thompson then said words to the following effect:
There is nothing we can do, what do you want us to do?
Rigg replied with words to the following effect:
I don’t expect you to escort the men away or try and break things up but we need a police presence because what’s happening is illegal and in breach of the Supreme Court order.
Rigg did not recognise any of the 30 to 40 men as Grocon employees or subcontractors. The truck remained near the entrance to McNab Avenue for approximately 15 minutes. It then left the area. It did not enter McNab Avenue.
215 It is clear from Rigg’s evidence that, although he did not himself speak to the driver of the truck, he understood that the truck was carrying the quantity of reinforced steel that was scheduled to be delivered to the Grocon site by 7.00 am that morning. 258 He was not challenged in cross-examination on this point. The truck appears on the video to be carrying a load which could well be reinforced steel. I will return to this shortly.
216 In his affidavit, Rigg gives the following further evidence which is not in dispute and which I accept. At approximately 6.55 am Rigg walked back down McNab Avenue to Gate 1. He unlocked the gate. As he walked down McNab Avenue he was abused by the group of men who called him a “rat” and a “dog”. Rigg went into the McNab site through Gate 1 and proceeded through to Gate 3. From there Rigg observed through a gap in the fence Reardon walking along the McNab Avenue footpath next to the fence line of the McNab site. He observed Reardon put the hood
of his CFMEU branded jumper on as he approached the part of the footpath that is covered by CCTV cameras along McNab Avenue. At approximately 7.00 am the 12
258 Exhibit P 26 (affidavit of Rigg [17(xii)], [41], [42]. SC: 83 JUDGMENT
or so employees who were waiting at the Footscray Station footbridge walked down McNab Avenue with Grocon’s Executive Project Manager, Mr Bortoletto, as a group,
and they entered the site through Gate 3 (the back gate) where Rigg was positioned.
217 I come now to what Grocon calls “the second attempt”. Rigg was within the site at the time. He was examining earlier CCTV recordings. He did not directly observe
the incident. 259 I have alluded above to the parties’ agreement concerning the evidentiary effect of paragraphs 41 and 42 of Rigg’s affidavit. Subject to that
agreement, and having viewed the relevant video recordings for myself, I accept what Rigg says in those paragraphs, to wit:
41 At approximately 7.30 am I instructed one of my foremen to arrange for the truck driver to make a second attempt at delivering the reinforced steel to the McNab Site.
42 At approximately 8.03 am the truck that was scheduled to make the delivery of reinforced steel referred to above in paragraphs 16-18 returned to McNab Avenue to attempt again to make the delivery. I have since viewed CCTV footage of this incident. I observed from the CCTV footage the following:
(i) the white truck arrived.
(ii) one of the men stood in the entrance to McNab Avenue in front of the white truck.
(iii) approximately 15 men stood around and in front of the white truck at the entrance to McNab Avenue.
(iv) a number of men approached the driver of the truck at the driver’s side window.
(v) the men spoke with the driver of the truck through the driver’s side window.
(vi) the driver of the truck got out of the truck.
(vii) some of the men were wearing CFMEU branded clothing. I did not recognise any of these men as Grocon employees or subcontractors.
(viii) a group of men approached the driver and surrounded him.
(ix) a number of police officers approached the group and separated the driver from the other men.
259 Transcript (27 September 2012) 167-168. SC: 84 JUDGMENT
(x) (deleted – inadmissible)
(xi) the men continued to stand in front of the truck blocking the entrance to McNab Avenue.
(xii) the driver then spoke again with the men and got back in the truck.
218 Rigg proceeds to state in paragraph 43 of his affidavit, and the relevant video recording confirms, that at approximately 8.07 am the truck referred to in paragraph
42 of the affidavit left without making any delivery. I so find.
219 As mentioned above, Rigg gave evidence on 26 and 27 September 2012. As part of his evidence in chief, the video recording relating to the first truck arrival was shown
in court. The video revealed that, in addition to the white utility, a person riding a motor cycle arrived at the roundabout while the semi-trailer was still stationary. The men who were congregated there stopped the motor cycle rider and spoke to him. They then allowed him through into McNab Avenue. In cross-examination, Rigg was asked by Mr Morrissey whether he recognised the driver of the white utility or the motor cycle rider. Rigg replied, and I accept, that he recognised them as persons who had been working on the Regional Rail Site in McNab Avenue, which is
adjacent to the McNab site, on the previous day. 260
220 A little earlier in the cross-examination, Rigg conceded that he was not able, from his own observations , to give a physical description of the driver of the first truck or the driver of the second truck. He conceded that he did not speak to the driver of the first truck or the driver of the second truck. Finally, he conceded that, from his own observations , he could not even say that it was the same truck.
221 On the narrow issue of whether the truck that arrived on the second occasion was the same truck that arrived on the first occasion, contrary to the submissions of the CFMEU, I am satisfied beyond any doubt at all that it was the same truck. The CFMEU itself concedes that “the appearance is similar” 261 . It was obviously Rigg’s belief on the day that they were the same, and Rigg was, after all, the Project
260 Transcript (26 September 2012) 147. 261 CFMEU’s final written submissions, para 18.1. SC: 85 JUDGMENT
Manager of the McNab site. He holds a Bachelor of Applied Science (Construction Management) from RMIT. 262 I do not understand his evidence in cross-examination referred to above to involve a concession that his belief now is any different from what it was on the day. Further, to my eye, viewing the two videos, the trucks look
identical. They appear to be the same size and configuration. Their front design, including the cabin, looks identical. The number of wheels looks the same.
Immediately behind the cabin in each case is a large fitting which appears to be a receptacle of some kind and which looks identical in each case. The load looks the
same. In addition, apart from the abovementioned evidentiary agreement relating to the state of mind of the driver, Rigg was not challenged on his evidence that at
approximately 7.30 am he instructed one of his foremen “to arrange for the truck
driver to make a second attempt at delivering the reinforced steel to the McNab site”. Within about half an hour of the giving of that instruction, a truck that looks exactly the same and looks to have the same load arrives at the entrance to McNab Avenue. As I have said, in my view there is no doubt at all that it was the same truck.
222 I turn now to the evidence of Sergeant Thompson of whom, as mentioned above, Mr Morrissey ultimately asked no questions.
223 For the purposes of giving his evidence, Sergeant Thompson had, without objection, refreshed his memory from notes he had taken on his running sheet that day.
224 Subject to the agreement between the parties as to the purposes for which Sergeant Thompson’s evidence is admissible, I accept his evidence and make the following findings of fact accordingly.
225 Sergeant Thompson attended at McNab Avenue at approximately 6.06 am on Wednesday 5 September 2012. He attended initially with five other police officers. Two further police members joined them subsequently, making a total of 8. Asked in chief what he observed when he arrived at the site he said:
262 Exhibit P 26 (affidavit of Rigg) [2]. SC: 86 JUDGMENT
A group of approximately 50 males, I guess you’d call them picketers, were standing in the McNab Avenue area near the roundabout, and also down towards the railway station down McNab Avenue.263
There was then the following question and answer:
Where actually were they, when you say in McNab Avenue, where abouts?
In — on the roadway right at the edge of the roundabout. 264
Sergeant Thompson was at McNab Avenue for about an hour and a half until he left at 7.30 am. At approximately 6.45 am he had had a discussion with a truck driver
whose truck had arrived and stopped at the roundabout where Napier Street and McNab Avenue meet. Sergeant Thompson approached the truck driver. Asked for
his recollection of the discussion, he said
I asked the truck driver if he would like I could try and get him through to the Grocon site, and he said to me that he would speak to his boss first. After I spoke to him initially, I went and then spoke to Jamie Rigg, the site supervisor I believe he is, in Grocon, and I returned to the truck driver, and he indicated that no, he wasn’t willing to risk his truck from any damage, and I then had a further conversation with Jamie Rigg, who indicated to me that he wasn’t prepared to have any workers or subcontractors put in harm’s way. So he didn’t advocate that anyone force their way through the picket line. I then went back to the truck driver and again spoke to him, and I reconfirmed with him that he didn’t want to — — —265
Sergeant Thompson was then asked whether he recalled the actual words the driver had used. His answer was:
No , sorry, I don’t, I just — it was along the same lines that if he wanted — I actually conveyed what Mr Rigg had said to us, and I said in any case if push comes to shove, there’s only the six police here, three of which are policewomen, and 50 protestors or picketers. So we wouldn’t be able to get you in anyway. 266
Public statements made by the CFMEU and its officials
226 For the purpose of attributing legal responsibility to the CFMEU for the impugned conduct at the Emporium and McNab building sites, the applicants rely on a series of statements, said to amount to admissions by or on behalf of the CFMEU,
263 Transcript (26 September 2012) [73]-[74]. 264 Ibid [74]. 265 Ibid [75]-[76]. 266 Ibid [76]. SC: 87 JUDGMENT
contained in various publications, speeches and comments to the media. I have already referred to some of them, and the rest are set out below. As mentioned
earlier, the CFMEU admits the authenticity and admissibility of each statement.
227 On the morning of 28 August 2012 the Victorian/Tasmanian Divisional Branch Secretary of the CFMEU, Bill Oliver, was interviewed at the Emporium site on the
ABC News. Shaun Reardon was standing beside him. Oliver said, among other things:
What we’ve seen here this morning is Daniel Grollo’s industrial relations. This is what he wants for every Victorian construction worker – violence and thuggery on building sites. We have been down here now for seven days, there’s been a peaceful demonstration, and not once has Grocon tried to enter the site. We are back in the Supreme Court this morning and there is no doubt that this was a stunt all organised by Daniel Grollo …
What this blue is all about is, this is about defending the rights of construction workers … .267
On the same morning Oliver was further recorded on the ABC News saying:
This rally this morning was disciplined and when a horse is coming at you, you put your hands up to defend yourself. 268
228 As part of the same ABC news item, Ralph Edwards (Branch President of the Construction and General Division Victoria/Tasmania Divisional Branch of the CFMEU and a Divisional Vice President of the National Construction and General Division of the CFMEU) is recorded to have said to the persons in the crowd, by loud hailer:
We’re going back to work. 269
229 On 31 August 2012 the CFMEU website contained an article which quoted Bill Oliver as saying, among other things:
Last night we said we were willing to accept the recommendation of the President of Fair Work Australia that we lift our picketing of Grocon … We
267 Exhibit P10 (third affidavit of Gabrielle Hayward), exhibit GH-7. 268 Ibid. 269 Ibid. SC: 88 JUDGMENT
would have come down here this morning and advised our members to stand down so talks could proceed. 270
230 At or shortly before 8.03 am on Tuesday 4 September 2012 there was an item on the ABC News entitled “Both sides talking tough on Grocon dispute” in which Bill
Oliver was recorded as saying:
We thought that if we take out [inaudible] on Friday but he didn’t agree with the 14 day moratorium in it. And he didn’t agree that after 14 days we could come back and take more peaceful demonstrations … .271
231 On the Today Show on the morning of 4 September 2012, the National Secretary of
the Construction and General Division of the CFMEU, Dave Noonan, said, among other things:
I think the protest is to demonstrate that there are serious issues at the site. Last night the union had written to Grocon and to Daniel Grollo putting a peace plan …
… What you are seeing there is a peaceful protest which is legal and legitimate under Australian …
Certainly there is a right to peaceful protest in this country …
We did see some unfortunate scenes down there last week where there was the use of horses and the riot squad with pepper spray to try and break through the protesting line of workers …272
232 On 5 September 2012 a copy of a document headed “Open letter to Grocon employees” was distributed in the lunch rooms at the Mirvac Tower 8 site. The open letter bore the stamp of the CFMEU Vic/Tas Branch. It was stated to be authorised by Bill Oliver, Secretary, and John Setka and Elias Spernovasilis, Assistant Secretaries of the CFMEU Construction and General Division. It read as follows:
Daniel Grollo has been offered a way to settle the current dispute but prefers to wage war with the CFMEU.
The CFMEU has informed Fair Work Australia that we will suspend our protest outside the Emporium site indefinitely. All Daniel Grollo has to do is accept Justice Ross’s recommendation that he put legal action against the CFMEU on hold while talks take place.
270 Exhibit P10 (third affidavit of Gabrielle Hayward), exhibit GH-2. 271 Exhibit P23 (third affidavit of Gabrielle Hayward), exhibit GH-18. 272 Exhibit P23 (third affidavit of Gabrielle Hayward), exhibits GH-15 and GH-18. SC: 89 JUDGMENT
Instead, he continues to rage against the CFMEU from the safety of his office, while putting workers in a difficult position. This is madness. The Emporium site could be working normally if only Grocon would change a few court dates.
As a construction worker you’ve had to work hard for everything you’ve got and you deserve respect. You earn decent money thanks to the efforts of the CFMEU. Together we beat attempts in the past by Grocon to give you worse wages and conditions than the rest of the industry.
The current dispute is also about the company treating the employees with no respect.
Why shouldn’t you be allowed to raise issues with a real safety or union rep?
Why can’t you wear a union sticker on your hard hat without fear of intimidation?
Why should you be driven to work long hours and come in on your RDO, losing time with your family that you will never get back? These are real issues on Grocon sites, as you are well aware.
Daniel Grollo has been offered a way to calm the dispute. Instead he seems bent on having an all out war with the CFMEU, using you on the front line.
Don’t give Grollo his war. Keep refusing to get on his buses and tell him to sort out his issues with the CFMEU and start treating workers with respect. 273
233 On or before 10 September 2012, the CFMEU website contained an article entitled “The Grocon Dispute: Why we must fight”. The article was illustrated by a photograph of large numbers of construction workers gathered near the Emporium site. 274
234 On or before 12 September 2012, the CFMEU website contained an article entitled “Grocon Dispute – What it’s about: key issues”. This article was stated to be authorised by “Dave Noonan, National Secretary, CFMEU Construction, Sydney”. The article contains the following passages, among others:
CFMEU members are in dispute with Grocon over workers’ rights to representation on industrial and safety matters.
The company turned down a peace plan proposed by Fair Work Australia on Thursday, August 30.
273 Exhibit P23 (third affidavit of Gabrielle Hayward), exhibit GH-11. 274 Exhibit P23 (third affidavit of Gabrielle Hayward) exhibit GH-12. SC: 90 JUDGMENT
On Monday, September 3, the company knocked back a possible settlement based on a revised FWA recommendation.
The CFMEU has said there should be an unlimited suspension of the protest to allow for a negotiated settlement.
By September 4, the company still declined to come to the table.
…
The action of the past two weeks has been peaceful protest action. Peaceful protest is legitimate in Australia. 275
The applicants’ final written submissions on the remaining issues
235 I propose now to give an account of the applicants’ final written submissions on the remaining issues.
236 Grocon’s and the Attorney-General’s respective written submissions included some contentions about the meaning of the relevant orders. The submissions had been prepared without knowing exactly what the CFMEU may say about this. In the Attorney-General’s submissions, it was contended that the orders were clear and unambiguous; that “free access” was a broad term, necessarily broader than “access” alone; that “free” access meant access without any encumbrances; that the relevant orders restrained actions that may be placed in a hierarchy of obstruction from prevention to interference; that, therefore, obstruction short of an absolute prevention of a person’s “free access” to a site was capable of constituting a breach of the orders; and that merely making access more difficult “prevents” free access. On this analysis, to consider whether a person seeking to access the Emporium site
should have attempted to avoid the “blockade” by seeking access through tunnels or other alternative means would be to consider a significantly narrower interest than that which the orders protected. 276
275 Exhibit P23 (third affidavit of Gabrielle Hayward) exhibit GH-13. 276 Attorney-General’s written closing submissions dated 5 October 2012 para 24. SC: 91 JUDGMENT
237 In the same context, the written submissions filed by Grocon included contentions about the concept of obstruction, citing authorities such as McFadzean v CFMEU 277 to
which I will return after referring to the CFMEU’s submissions.
238 The balance of the applicants’ respective written submissions were mainly of a factual nature, addressing the specific charges. They were substantially consistent
with each other. It is convenient to continue this outline of the applicants’ final written submissions on the remaining issues by adopting, principally, the structure
and order of the Attorney-General’s written submissions, which are divided up as between the first contempt application and the second contempt application.
239 The applicants say that the evidence of conduct that is alleged, in the first contempt application, to have been engaged in in contravention of the Chief Justice’s order of 22 August 2012 can conveniently be divided into two categories, namely:
(a) evidence that establishes that free access of persons to the Emporium site was prevented, hindered or interfered with on the morning of 28 August 2012; and
(b) evidence that establishes that any such prevention was caused, procured or incited by the first defendant.
Prevention etc of free access to the Emporium site on 28 August 2012
240 The applicants submit that the evidence shows beyond doubt that the free access of Grocon employees to the Emporium site was prevented on the morning of Tuesday 28 August 2012. They say that that prevention was in the form of a physical barrier constituted by the presence of a large number of people, including officials of the CFMEU.
241 The applicants point to the evidence (which, as indicated above, I have accepted) that the group of 115 or so Grocon workers (genuinely) proposed to enter the site, and they rely on the evidence of McAdam (which I have also accepted) that it was “absolutely impossible” for the group to get from where it was across Lonsdale
277 (2007) 20 VR 250. SC: 92 JUDGMENT
Street to the Gate 1 area and the eastern entrance to the gantry, which would have provided access to the Emporium site.
242 The applicants rely on what they describe as a “violent confrontation” at about
7 o’clock that morning between a large group of “blockaders” and members of Victoria Police, including police officers mounted on horseback. 278 They emphasise
the roles of the CFMEU officials, Setka and Reardon. In particular they refer to McAdam’s observation of Setka “running and directing his people in and around the
police line” and the video evidence showing Reardon addressing the line of men with linked arms immediately before they advance towards the horses.
243 The applicants submit that these matters show that, by their presence alone, the persons congregating in the vicinity of Gate 1 made free access to and from the Emporium site impossible. They say that some of the evidence goes further and shows that those persons, or some of them, physically resisted what they characterise as the attempts made by the police to facilitate entry onto the site by Grocon workers (thus preventing, hindering or interfering with any access, free or otherwise).
244 They say that the subsequent “discussion” between Setka’s group and a number of Grocon workers further confirms that there was a determination to prevent the Grocon workers from entering the site freely.
245 In short, the applicants submit that there is no question that “free access” to the Emporium site was prevented on the morning of Tuesday 28 August 2012.
Conduct on 28 August 2012 was that of the CFMEU
246 The applicants submit that the CFMEU itself prevented “free access” by the conduct which it authorised its human agents to engage in, or which it failed to prevent. They refer to evidence (all of which I have accepted) that the seven CFMEU officials listed in relation to each of charges 10, 11 and 12 (Edwards, Setka, Oliver, Spernovasilis, Christopher, Reardon and Stephenson) were all present and involved
278 Attorney-General’s closing written submissions dated 5 October 2012, para 15.3. SC: 93 JUDGMENT
in one way or another in the events of the morning. The applicants submit that, a fortiori , the same evidence makes out the charges that the CFMEU hindered and
interfered with “free access”.
Conduct on 28 August 2012 was caused, procured or incited by the CFMEU
247 Further or alternatively, the applicants submit that the so-called “blockade” on
Tuesday 28 August 2012 was coordinated and directed by the CFMEU. In this regard the applicants refer again to the evidence of McAdam (which I have accepted)
that he observed Setka “running and directing his people in and around the police line”. They also refer again to the video evidence of Reardon prompting the advance
of the line of men with linked arms. In addition, they rely on Edwards using a loud hailer and saying to the crowd
Here again tomorrow boys for more fun.
248 Further, they highlight the abovementioned address by another CFMEU official, Christopher, urging that the relevant unions and the members of the crowd stand “shoulder to shoulder” and “fight to the end”. They refer to the chanting led by Christopher.
The applicants also highlight the following words of Christopher:
Stick around and hold the line; don’t drop for a coffee, because the minute they [indistinct] that we’re gonna lose our numbers, the minute they’re gonna come back. The enemy will be back and we must be [indistinct] ready.
249 The applicants also emphasise the video evidence of the CFMEU official Bill Oliver addressing the media and, in particular, saying that “we” have “been down here now for seven days” and “we are back to the Supreme Court this morning”, and saying that “this blue” is about “defending the rights of construction workers”. They point out that Oliver is flanked by a selection of CFMEU officials, namely Reardon,
Setka and Spernovasilis.
SC: 94 JUDGMENT
250 The applicants further rely on the range of additional CFMEU publications and media comments referred to above, including comments made in the days following
28 August 2012.
251 The applicants submit that, on the principles referred to in Shepherd v R ,279 the Court can safely infer, beyond reasonable doubt, that the impugned conduct was
authorised and carried out by the CFMEU or that the CFMEU procured, caused or incited persons to breach the Court’s orders as charged.
Prevention etc of free access to the Emporium site on 29 August 2012
252 Turning to the matters covered by the second contempt application, the applicants
submit that the evidence shows that the CFMEU, by its officers, Oliver, Setka,
Reardon, Stephenson and Spernovasilis, together with persons proximate to the Emporium site, prevented, hindered and interfered with free access to that site on the morning of Wednesday 29 August 2012.
253 The applicants point in particular to the evidence of McAdam that at about 6.00 am he observed approximately 300 persons “blocking the roadway” between the McDonald’s Restaurant and Gate 1 on Lonsdale Street. They further rely on the statement of McAdam that “there was no path through to Gate 1”. They further point to McAdam’s evidence that by about 6.45 am the crowd had swelled to approximately 500 persons before dissipating to approximately 100 persons by about 7.20 am.
254 The applicants refer also to McAdam’s additional observations that from time to time during the remainder of that day significant numbers of persons and items associated with the CFMEU could be seen in various locations around the perimeter of the site.
255 The applicants note that the evidence duly shows that Stephenson, Reardon, Oliver, Spernovasilis and Setka were all in attendance from time to time at the site on 29 August 2012.
279 (1990) 170 CLR 573, 579. SC: 95 JUDGMENT
256 The applicants say that the fact that the Grocon employees had been instructed not to attend at the Emporium site on 29 August 2012 does not mean that access to the site
was not being prevented, hindered or interfered with. They say that a reasonable decision to redeploy the workers had been made the evening before, reflecting
concerns for the safety of the workers. They also say that, based on McAdam’s observations on the day, “free” access to the Emporium site on that day was not
possible due to the large number of people around the Gate 1 area in the morning, leaving no clear path into the site (at least via the eastern entrance of the Lonsdale
Street gantry).
Causation, procurement or incitement on 29 August 2012 by the CFMEU
257 The applicants submit that the evidence establishes that the CFMEU was responsible for the alleged obstructive presence of the large number of people around the Emporium site on 29 August 2012. In this regard, the applicants refer again to the attendance of the five named CFMEU officials, the persons standing around the Little Bourke Street barbecue (of whom some were wearing CFMEU branded clothing), the red CFMEU flag attached to a loading bay fence, the persons wearing CFMEU branded clothing cooking on a barbecue approximately two metres from Gate 1 at about 9.00 am, the attachment of the black “CFMEU” flag to the overhead protection gantry and the presence of the black SUV with a “CFMEU Victoria” sign on the back window, among other things.
Prevention etc of free access to the Emporium site on 30 August 2012
258 The applicants submit that the evidence shows that the entrances to the Emporium site near the junction of Lonsdale Street and Swanston Street were again blocked by a large group of persons on the morning of Thursday 30 August 2012. They note that, on this occasion, the crowd swelled to approximately 1200 people. They refer to the unchallenged evidence of McAdam that the majority of these persons were wearing
CFMEU branded clothing. They note that the crowd was so large that no vehicular traffic could pass along Lonsdale Street in either direction.
SC: 96 JUDGMENT
259 The applicants refer to the chanting of slogans, including the chant asserting that “we” are from the CFMEU and are “here to stay”.
260 The applicants point out that the CFMEU officials referred to in the relevant charges
were all observed to be present on the day and that Reardon, Spernovasilis and Setka, in particular, were observed by McAdam to be part of the crowd “blocking the
path through to Gate 1” at approximately 6.40-6.45 am.
261 As before, the applicants accept that no attempt was made to enter the Emporium site on this occasion, but they say that this was “due to the blockade, on the basis
that it was considered unsafe for Grocon employees to attempt entry”. 280
Causation, procurement or incitement on 30 August 2012 by the CFMEU
262 The applicants say that responsibility for the events at the Emporium site on 30 August 2012 can be seen to be attributable to the CFMEU. They refer in particular to attendances by the CFMEU officials at the site, the prevalence of CFMEU branded clothing, the attaching of a red CFMEU flag to a Grocon hoarding, the chanting (with references to the CFMEU) and the red CFMEU flag in the crowd, among other things.
Prevention etc of free access at Emporium site on 31 August 2012
263 Notwithstanding that a relatively small group of Grocon workers did obtain access to the Emporium site on the morning of Friday 31 August 2012 with the assistance of the Victoria Police, the applicants submit that the CFMEU was maintaining an obstructive picket at the site on that morning.
264 The applicants point to the evidence that approximately 400 persons were gathered on the corner of Swanston Street and Lonsdale Street at 5.15 am; that the majority of the crowd were wearing CFMEU branded clothing; that there was a significant police presence; that the crowd swelled to approximately 800 to 1000 people by
about 6.30 am (with about 50 percent of them were wearing CFMEU branded
280 Attorney-General’s closing written submissions dated 5 October 2012, para 20.5. SC: 97 JUDGMENT
clothing); and that, from about 9.00 am, after which time the numbers of people standing in the vicinity of the Emporium site had diminished, the majority of those
remaining were wearing CFMEU branded clothing.
Causation, procurement or incitement on 31 August 2012 by the CFMEU
265 The applicants point out that Edwards, Setka, Reardon, Spernovasilis, Oliver,
O’Grady and Noonan were all observed to be present at the Emporium site that morning. They refer to Edwards chanting “CFMEU” and the crowd responding
with “CFMEU”. They refer to the public statements made by the CFMEU or its officials at around that time. They rely on all the other signs of CFMEU involvement
detailed in the evidence, including flags and CFMEU branded clothing.
Prevention of free access to McNab site on 5 September 2012
266 The applicants submit that the video evidence relating to the events at the McNab site on 5 September 2012 really speaks for itself. They say it shows that the semi- trailer was physically prevented from entering McNab Avenue and making its proposed delivery of reinforced steel to the Grocon site on two occasions. They rely on the presence of Reardon and Setka and the fact that both of them stood at the driver’s door of the semi-trailer. They rely on the fact that Reardon addressed the group of men standing around the intersection of Napier Street and McNab Avenue. They say that it is striking that during the period covered by the CCTV footage two other vehicles that had no connection with the Grocon site were stopped and then waved through whereas the semi-trailer stayed stationary for lengthy periods during which the driver was spoken to by Setka and Reardon and then by Sgt Thompson, and all the while the approach to the McNab site was obstructed by persons who were in company with Setka and Reardon, some of whom were wearing CFMEU- branded clothing.
267 The McNab site charges do not use the language of causation, procurement or incitement. Rather, they allege that the CFMEU itself (by its human agents) prevented, hindered or interfered with free access to the McNab site by the semi-
SC: 98 JUDGMENT
trailer. In addition to the presence of Reardon and Setka and the wearing of CFMEU clothing by some of the 30 to 40 men congregated at the McNab Avenue entrance,
the applicants rely, as I understand them, on the general history of events leading up to Wednesday 5 September, including the various public statements made by the
CFMEU or its official as detailed above.
Overall summary
268 In summary, the applicants submit that, on any analysis of the evidence, the access
of Grocon employees to the Emporium site on 28, 29, 30 and 31 August 2012 was anything but “free”. They make the same submission in relation to the access of the
semi-trailer to the McNab site on Wednesday 5 September 2012.
269 As to “prevention”, the applicants say that, at the Emporium site (on each of the days in question), access was rendered “impossible” in at least three ways, namely:
(a) by the presence at the site (and around its entrances) of “protestors” in numbers that were sufficient to constitute a physical barrier that rendered access to the site impossible, and potentially dangerous (or, at the very least, not “free”); and
(b) by the active resistance that those “protestors” (or some of them) offered in response to attempts that were made by Grocon employees to access the site (at least on Tuesday, 28 August 2012); and
(c) by the continuation of the “physical blockade” that caused Grocon employees to be instructed for reasons of safety not to attend or attempt to enter the site
on specified work days. 281
The applicants say that at the McNab site on 5 September 2012 access was rendered impossible by the “blockaders” positioning themselves, on at least two occasions, in the path of a truck that was at the site to make deliveries of materials. 282
281 Ibid, para 25.4. 282 Ibid, para 25.5. SC: 99 JUDGMENT
270 The applicants submit that, in each case, access to the site was rendered impossible or, in any event, appreciably more difficult than it would otherwise have been.
“[F]ree access” was, therefore, “prevent[ed]”. The applicants submit that, by participating directly in the “blockades” that brought about that result, or by
organising for others to constitute them, the CFMEU’s officials (and, by extension, the CFMEU) prevented the free access of persons and vehicles to the sites.
271 Alternatively, the applicants submit that the free access of Grocon employees to the
Emporium site and of vehicles to the McNab site was plainly hindered or interfered with at each of the times alleged. They say that the “protestors” who occupied the
vicinity of entrances to those sites at those times, by their mere presence, made the gaining of free access to them more difficult than it would otherwise have been (and, thereby, hindered or interfered with it). The applicants submit that the hindering or interfering with free access, then, was constituted in the same way as the prevention of that access is said to have been.
272 Further or in the alternative, the applicants say that the incident involving the group of Grocon employees and Mr Setka and Mr Lythgow involved verbal abuse and physical intimidation directed against the Grocon employees, both Setka and Lythgow being “rather large” men. The applicants submit that, by this conduct, Setka (and, through him, the CFMEU) should be understood to have hindered or interfered with the Grocon employees’ free access to the Emporium site on Tuesday, 28 August 2012.
273 The applicants say that the CFMEU’s officials had direct involvement in preventing, hindering and interfering with free access on each of the relevant days. They say that Reardon was in the front line of the “surge”; that Setka was “running and directing his people in and around the police line”; that on each of the days in question, numerous other officials – namely, Oliver, Spernovasilis, Edwards, Christopher, Baradi, Stephenson, O’Grady, Noonan and Johnston – formed (at various times) part of the physical presence by which free access to the Emporium site was rendered impossible; and that on Wednesday, 5 September 2012 Setka and SC: 100 JUDGMENT
Reardon formed part of the physical presence by which access to the McNab site was rendered impossible for the semi-trailer.
274 The applicants submit that it is established beyond reasonable doubt that the
CFMEU “caused”, “procured” or “incited” the obstruction at each of the sites, and that this is established in four ways.
• First, by the presence of officials of the CFMEU in and around the vicinity of
the “protests”, the conduct of those who constituted the “blockades” was implicitly (at the least) authorised by the CFMEU.
• Second, that appearance of official sanction was enhanced by the array of
CFMEU–branded infrastructure that was deployed in the service of the
“blockades”.
• Third, the CFMEU’s officials were openly supportive of the “protests”, both by their conduct and by the various speeches and publications referred to above.
• Fourth, there was direct incitement by
(a) Derek Christopher, speaking by loud hailer to the large group of “protestors” at the Emporium site on Tuesday 28 August 2012, calling on them to stand shoulder to shoulder, to stick around and to hold the line, etc.
(b) Ralph Edwards, also speaking by loud hailer on the same occasion, saying “back here again tomorrow boys for more fun”.
275 The applicants submit that by each of these four species of conduct, and, in particular, by all of them collectively, the CFMEU caused, procured or incited the “blockades” which, in turn, made access to the sites impossible or, at the very least, appreciably more difficult. They say that “free access” was, thus, prevented.
SC: 101 JUDGMENT
276 The applicants say that it is significant that Grocon employees did not participate in the conduct at the Emporium site. “They were CFMEU blockades”. 283
277 The applicants say that the opposing contention is that it might reasonably have
been possible that hundreds of people, with no connection to Grocon or to its industrial dispute with the CFMEU, were, nonetheless, so affected and aggrieved by
Grocon’s stance in that dispute, or by some other matter, that they felt spontaneously compelled to amass in number, early in the morning, morning after morning, to
engage in obviously unlawful conduct, and to willingly expose themselves to the prospect of police confrontation and legal sanction. The applicants say that that
proposition is absurd. Rather, they say, it is clear beyond reasonable doubt that the “blockades” – and the consequent prevention of free access to the sites – were caused, procured or incited by the CFMEU (by the authorised, or not-prevented, conduct of its human agents).
The CFMEU’s final written submissions on the remaining issues
278 The CFMEU’s final submissions begin with some propositions about the meaning of the orders and the charges.
279 Dealing first with the relevant orders, the CFMEU submits 284 that they only restrain “actual” preventing (etc). It says that there can be no preventing, hindering or interfering with free access to a site within the meaning of the orders except in a “concrete” situation, such as where persons actually seek or attempt, on the day in question, to enter the site.
280 Alternatively, the CFMEU says that the charges actually laid refer only to such “concrete” situations. Thus it says that the expression “persons engaged to work on the Emporium site on that day”, which appears in the particulars to each relevant charge, refers to persons who are actually engaged to attend and work at the site on the relevant day and actually seek to do so.
283 Ibid para 25.20. 284 See the CFMEU’s written closing submissions dated 15 October 2012 para 1.3-1.4. SC: 102 JUDGMENT
281 As to the charges of procuring, causing and inciting, the CFMEU contends that it is oppressive to seek convictions on them as well as on the principal corresponding
charges. However, it says, if the charges remain, the same elements must be proved. Thus, in respect of 28 August 2012, it must be proved that persons prevented free
access, to “persons engaged to work on the Emporium site on that day”, to the Emporium site between 6.30 am and 11.00 am on that day. The CFMEU notes that
no charge of attempting or conspiring has been laid, as those concepts fall outside the terms of the orders.
282 The CFMEU contends that the applicants have not charged a “between dates” or
“continuing enterprise” charge. It says that this is consistent with a plain reading of the orders. Instead, according to the CFMEU, the applicants have charged discrete contempts for each day. In each case, therefore, the charges explicitly relate to a specific attempt by specified persons at a specified time to gain free access, according to the CFMEU. It says that such specific charges are appropriate. It submits that in Bovis Lend Lease Pty Ltd v CFMEU ,285 Tracey J read down broader, more ambiguous charges to specific instances of contempt. Once again, it is actual prevention / hindering / interference with free access, rather than potential interference, which must be proved, the CFMEU says.
283 As a further general principle, the CFMEU contends that the expression “free access” in the orders and the charges is more limited than the applicants would have it. The CFMEU says that the adjective “free” in the phrase “free access” denotes:
effective access, access free from the imposition of conditions and from the imposition of delays and inconveniences which are unreasonable in the circumstances of a lawful protest gathering. 286
284 Further, the CFMEU submits that the term “free access” is to be considered in the context of the specific charges. In those charges the applicants rely upon the mere
285 (2009) 254 ALR 306, 326 [90]. 286 Addendum to written closing submissions of the CFMEU dated 17 October 2012 para 2. Thus, during final oral submissions, Mr Morrissey contended that blocking only one of the two entry points to the Lonsdale Street gantry would not constitute a “relevant diminution” of free access to the Emporium site: transcript (18 October 2012) 325 SC: 103 JUDGMENT
presence (albeit in large numbers) of persons said to be agents of the CFMEU. The CFMEU characterises this as “inaction”.
285 The CFMEU says that mere inaction would not amount to preventing (etc) “free
access” unless the inaction arises against a background of the threat of genuine violence or aggression. It submits that it is not sufficient that a timid or
opportunistic plaintiff can construct such a threat. In other words, the threat must not be simply presumed. The CFMEU says that, in this case, no threat of genuine
violence or aggression could be constructed from the words of the CFMEU or from the actions of any person associated with it. A contrast is drawn between this case
and the facts of Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd 287 . In that case, the Maritime Union of Australia and their associates were found to have engaged in a range of violent conduct that was characterised by the court as putting at serious risk any employees attempting to enter the site. The conduct was described as “serious criminal behaviour”. The CFMEU submits that those facts are far removed from McAdam’s claim that there was a risk to health and safety of Grocon employees. It submits that the evidence of previous conduct by the CFMEU was “extremely mild and unable to elevate the CFMEU presence and protest on the 28 th and following into a prevention / hinder / interfere with free access”. 288
286 In this regard, the CFMEU submits:
Mr McAdam’s summary of “intimidation” prior to the 28 th is stated to be based on having observed: persons in groups often with folded arms and large builds, some of whom had sunglasses; negative pamphlets distributed around the site; some people carrying metal bars and flag poles (with no suggestion they had menaced anyone with such objects); the majority of persons wearing CFMEU branded clothing; that some locks on site gates had been glued. 289
287 The CFMEU continues:
On the 28 th , Mr McAdam observed a large crowd and some pushing between police and a small number of the crowd. This simply is not enough to found
287 [1998] 4 VR 143. 288 CFMEU’s written closing submissions dated 15 October 2012 para 3.6. 289 I repeat that I understand the parties to have agreed that any gluing of locks on site gates cannot be found to be attributable to the CFMEU itself. SC: 104 JUDGMENT
an evidentiary basis capable of demonstrating a “prevention (etc) of free access” by inaction. 290
288 In relation to the Emporium site allegations generally, the CFMEU says that the crowd assembled at Gate 1 of the site was “large and variable”. It says that the
applicants have not proved that the acts of the persons in the crowd were procured or caused by the CFMEU. It submits that the applicants’ reasoning relies upon
speculation and conjecture. It submits that there are reasonable inferences available other than that the crowd attended at the site because they were procured or caused
to attend by the CFMEU in order to prevent free access. The following possibilities are suggested:
They may have attended to protest but not prevent free access; they may have attended due to feelings of sympathy for the dispute with Grocon; they may have attended out of curiosity; they may have attended because the ETU or another union asked them to. 291
289 The CFMEU submits that it is neither pleaded nor proved against it that the individual acts of CFMEU officials, apart from the presence and alleged activities of the crowds, suffice to constitute a contempt by preventing (etc) or procuring or causing the prevention of free access.
290 The CFMEU next focuses in particular on the first contempt application, as follows.
First contempt application: 28 August 2012: no breach by protestors
291 In relation to the applicants’ assertion that the mere presence in large numbers of the “protestors” constituted “a physical barrier that made free access … impossible”, the CFMEU submits that it is not shown that it procured or caused the crowd to reach the size it did, especially given evidence that other unions were represented. 292 Next the CFMEU addresses the applicants’ reliance on physical resistance, by some protestors, to “attempts made by the police to facilitate entry onto the site by Grocon employees”. The CFMEU contends that there are major flaws with the applicants’
submission in this regard. In particular, the CFMEU submits:
290 Ibid paras 3.7-3.8. 291 Ibid para 4.4. 292 See further below. SC: 105 JUDGMENT
There is absolutely no evidence that the physical clash between police and protestors at around 7.00 am constituted a police attempt “to facilitate entry” onto the site by Grocon employees, as the first plaintiff asserts. On the current evidence, the nature and cause of this clash is entirely unexplained. There is no evidence who caused it and who (if anyone) is at fault. Mr McAdam did not seek to link police activity to any plan regarding his Grocon employees. The Plaintiffs (particularly the Fourth Plaintiff) were doubtless able to explain it, but elected not to do so. In any case, it is not linked by evidence to any “attempt” to enter. There was no such attempt (see below).
Nor does any alleged participation of certain CFMEU officials transform a minor scuffle (which led to no apparent charges) into evidence of prevention. Mr Setka’s presence does not transform this fracas into an instrument of prevention of free access .293
No blockade
292 The CFMEU submits that the rhetorical term “blockade” mis-describes the CFMEU
presence at the site on 28 August 2012. It says that a “blockade” is a blocking of all access to a site (referring to a dictionary definition). The CFMEU says that there is no evidence that this was done. It points out that McAdam gave evidence that there were five access points to the site other than the loading bays and, in addition, four tunnels into the site. The CFMEU submission continues:
There is no specific charge alleging breach by blockade, nor could there be. There is no evidence that an effective blockade around the site was established at the specific times charged (or, indeed, at any time). The only gate effectively obstructed was Gate 1.294 Gate 1 was not, as of 28 August, an access point into the site. Mr McAdam’s evidence is that even if there were no people gathering in front of that Gate that it would not have been used for access.
In any case, given the existence of other gates on Little Bourke Street (below the loading bay), the western entrance to the gantry on Lonsdale Street and of tunnels recently constructed by Grocon, it is not a rational inference that the CFMEU’s presence was intended to physically block access. There is no evidence that CFMEU interfered with access at each of these points. The CFMEU was permitted to protest and did protest. The area outside Gate 1 was the focus. Mr McAdam conceded it was a good place to make a fuss. 295
No procuring / causing
293 The CFMEU submits that it must be proved that the breaching acts were committed by agents of the CFMEU, that is, by persons whose acts (the preventing of “free
293 CFMEU’s written closing submissions dated 15 October 2012 paras 5.3-5.4. 294 Emphasis added by me. 295 Ibid para 6.2 and 6.3 SC: 106 JUDGMENT
access”) were “procured” or “caused” by the CFMEU. It says that it is not sufficient to prove that the CFMEU “ratified”, “authorised”, approved of or celebrated
particular crowd behaviour. The CFMEU says that the evidence does not establish such a causal link beyond reasonable doubt.
294 In particular, the CFMEU says that it is not proved that the crowd, which “so
concerned” McAdam on 28 August, was under the control or direction of the CFMEU. This is a matter, it says, which Grocon or its investigators or the Attorney-
General or the Victoria Police could have ascertained by “simply asking a random selection of members of the crowd who (if anyone) had procured their attendance
there and for what purpose”. No such evidence has been led.
295 The CFMEU submits that the video evidence demonstrates that the crowd was diverse. It says that, while a number of CFMEU officials have been identified as being present, the identity of the overwhelming majority of members of the crowd is unknown. The CFMEU acknowledges that a number are wearing jumpers with
CFMEU or ETU logos on them, but says that the overwhelming majority are not. 296 The CFMEU says that the crowd is also made up of members of the public and members of the media. It here notes that McAdam could not exclude that some members of the crowd were Grocon employees. 297
296 As the CFMEU would have it, the evidence discloses CFMEU officials playing a confined and relatively responsible role during a minor fracas between certain workers and mounted police at around 7.00 am. It says that Reardon can be seen entering between police and crowd members and that no official can be seen as part of the pushing. It says that this fracas is not proved to bear any relationship to the wishes of the Grocon employees to gain access to the site. In particular, it says, the Grocon employees could not be seen from the street below and, after they came down and stood under the QV building, they did not move and the “surge” towards
the police was not in their direction. In any event, according to the CFMEU, no level
296 Here it refers to four video files which are mentioned above in the section on the reliability of McAdam as a witness. 297 But see my finding on this point above. SC: 107 JUDGMENT
of control over the larger crowd can be inferred. At most, an ability to gain a hearing from sections of the crowd can be inferred.
No de facto refusal
297 The CFMEU submits that it did not declare or communicate that an attempt by Grocon employees to gain access would be prevented, obstructed or hindered by the
CFMEU (as compared to dissuaded) at the specific times charged (or, indeed, at any other relevant time). There was no reasonable basis to believe that the CFMEU
would attempt to prevent access, whatever minor incidents had occurred earlier.
298 Nor, the CFMEU submits, did it effectively block access to the site. It acknowledges that a large crowd formed, including CFMEU officials, by Gate 1. But, it says, there is no evidence that it knew that the Grocon employees wished to access the site, at around 7.00am, travelling from the QV building to the site office gate. There is no evidence, it says, that Grocon workers normally assemble at the QV building, or traversed any predictable path from the QV building to the west or east entrance to the gantry, thereby accessing the site office gate. It says that there is nothing to prove that access by Grocon employees to the normal site office gate using the western gantry entrance was prevented. It mentions that other “very well known” entry points existed.
299 The CFMEU’s submissions in this regard continue as follows
Importantly, the crowd was not positioned so as to prevent free access to the “Site Office Gate” – the gate Grocon preferred to use. 298 It cannot be inferred that the crowd was positioned to prevent passage from the QV building to the site even if, as is not proved, the CFMEU had control of the crowd. Even Mr McAdam embraced the term “dissuade” when describing the potential motivation of an earlier crowd outside Gate 1. 299 “Free access” cannot be denied to those not attempting to exercise it in the circumstances of this case.
In short, therefore, the CFMEU did not prevent / hinder / interfere with free access simply by having a presence in the crowd outside gate 1 on the morning of 28 August. It appears there was access to the site office gate by the western entry to the gantry, as well as by the Little Bourke Street gates and the four tunnels.
298 The CFMEU notes here that the western end of the gantry is shown to be controlled by police at 7:13 am and that there is no evidence that this was not the case earlier (or later). 299 In his affidavit of 27 August 2012 McAdam had stated (at [13]): “I am not aware of any reason for those persons to be standing at the entrance to Gate 1 (or otherwise around the perimeter of the Emporium Site), other than to prevent or dissuade persons from entering the Emporium Site.” SC: 108 JUDGMENT
No explicit refusal: no notification, no request
300 The CFMEU submits that there is no evidence that Grocon or its representatives
notified the CFMEU, and little evidence that access to the site was seriously discussed between police and Grocon or police and the CFMEU on 28 August. It
says that there is no evidence that Grocon asked the CFMEU to ensure (pursuant to its duty not to omit to act) that those employed to work on the site on that day were
not prevented, interfered with or hindered in freely accessing the site. It says that there is no evidence that the police asked either.
301 Therefore, the CFMEU says, there is no evidence that the crowd did in fact constitute
a barrier to free access to willing Grocon employees wishing to access the site that day, even accepting that McAdam was concerned about it. Finally, it says, even if the crowd did constitute an interference or hindrance to the relevant employees, it is not proved to what extent the crowd or elements of it were under the control of the CFMEU. Almost the entire 1,000 persons observed near Gate 1 by McAdam are unidentified and cannot be presumed to be CFMEU agents, it says.
No attempt
302 According to the CFMEU, there was no effort to enter the site at all. It says that McAdam testified to that effect on 3 September 2012. 300 It says that the following matters confirm this:
• The employees did not leave the QV building entrance when they came downstairs;
• They were not asked to do so by employers or police;
• They went back upstairs following a police request;
• They did not try to access a part of the site away from the crowd of people outside Gate 1; 301
300 Citing transcript (3 September 2012) 99-100. 301 It is said that in cross-examination McAdam conceded that he did not enquire whether other points were open: transcript (3 September 2012) 113.13. SC: 109 JUDGMENT
• They did not try to access the site through a tunnel;
• Within 10-15 minutes of returning upstairs, all were sent home despite McAdam not knowing whether there were or were not any obstructions at
other parts of the site.
303 According to the CFMEU, there is no evidence of a plan to enter, a decision to enter
or a request to enter. There is no evidence, it says, that the CFMEU acted to block any proposed entry (real or rhetorical).
304 In light of this, the CFMEU says, the claimed prevention (and alternatives) of “free
access” are entirely artificial and theoretical. Put into the context of this proceeding, it says, these allegations cannot be proved beyond reasonable doubt.
No “prevent / hinder / interfere”
305 By way of conclusion, the CFMEU submits that it did not prevent free access to the site on 28 August 2012. It says that no access, free or otherwise, was sought by “persons engaged to work at the site on that day”. No one, let alone the CFMEU, prevented free access; the relevant employees did not try because Grocon did not tell them to try.
306 Furthermore, according to the CFMEU, there is no evidence that the CFMEU deliberately prevented free access on the part of the Grocon employees. There is no evidence, it says, that it was aware of a plan to take those employees to the site by any particular route at any particular time. The Setka discussion cannot found any such inference, it says.
307 According to the CFMEU, it did not hinder free access to the site on 28 August 2012. If the charge is read with appropriate rigour, it says, the “hindering” pleaded must relate to a particular attempt whether successful or not, rather than to a general notion of blockade, the fact of which, in any event, cannot be proven.
308 Neither, the CFMEU says, did it “interfere with” free access to the site on 28 August 2012. SC: 110 JUDGMENT
No “procure” or “cause”
309 According to the CFMEU, paragraphs 13 and 14 of the statement of charge require
the applicants to prove that the CFMEU procured (or caused) persons to “gather outside Gate 1 … and prevent free access to the Emporium site by persons engaged
to work on the Emporium site that day”. The CFMEU says that there is no meaningful difference between the terms “procure” and “cause” in the context of the
charge. Each connotes a guilty act by the CFMEU to cause person to “gather … and prevent”. It is that act which must be proved. As a mere gathering does not breach
the order, the charge refers, in effect, to “gathering to prevent”. The submission continues: 302
The Plaintiff must prove that an act of the CFMEU procured persons to “gather … and prevent” “free access”. Furthermore, it must be shown that the persons so gathered did in fact prevent free access to the relevant “persons employed”.
The plaintiffs did not prove this. In particular, as noted above, they failed to prove that the CFMEU, through its agents “prevented” free access. There is no charge of procuring / causing persons to hinder or interfere with free access of the relevant persons at the relevant times.
Furthermore, the Plaintiffs failed to prove any sufficient causal role between the CFMEU and the crowd’s alleged breaching behaviour. It was the crowd as a whole which Mr McAdam claims blocks his path, not the CFMEU officials or those wearing a CFMEU jumper. There is no evidence that the entire crowd or any specific individuals within it (excluding CFMEU officials), were acting at the behest of or under the control of the CFMEU. The crowd is not shown, to the requisite standard of prove [sic], to:
• Consist entirely (or even primarily) of CFMEU members or officials; or
• Be under direction of the CFMEU; or
• Be answerable to the CFMEU.
To prove procuring / causing the prevention of free access, the causal link between the crowd’s actions and CFMEU acts must self-evidently be proved. On this point, the Plaintiffs’ evidence is poor and equivocal at every step.
The first plaintiff relies upon evidence of the presence of CFMEU officials “proximate to site entrances” at Gate 1 and the Loading Bay.303 But presence does not prove a causal link to the crowd’s actions.
Next, the First Plaintiff relies upon evidence of authority and procurement (etc) of persons to prevent free access. But this evidence did not approach proof that the crowd was procured or caused to act as it did by actions of the CFMEU. The relevant causal link is not proved by post-facto “ratification” of the crowd’s activity by the CFMEU, nor by activity on subsequent days (misnamed a “blockade”). In fact, there is no evidence that the crowd or any significant
302 CFMEU’s written closing submissions dated 15 October 2012 paras 12.2 – 12.6 (footnotes omitted). 303 Here the CFMEU notes that those sightings do not place officials at any other gate or tunnel. SC: 111 JUDGMENT
part of it acted at the behest of the CFMEU. In any case, no charge is framed as a breach by “encouraging” the activities of the crowd.
No “incite”
310 In relation to the particular charge based on Edwards saying over a loud speaker
“Back here again tomorrow boys for more fun”, the CFMEU does not dispute that the words were said but submits that they were cryptic words and cannot prove the
pleaded incitement. It says that the phrase “back here tomorrow” is ambiguous; that it may be no more than an announcement of the CFMEU’s intention to be present. It
says that the term “more fun” is ambiguous. It says that it would be mere conjecture to suggest that this was an effort to incite persons to “prevent free access”. Other
equally valid conjectures arise, it says. It may be a reference to further protest or further police engagement (legitimate or otherwise).
Summary – 28 th August 2012
311 The CFMEU submits that each of the allegations relating to 28 August ought to be dismissed.
Second contempt application – 29 and 30 August 2012
312 The CFMEU submits that, in relation to the charges pertaining to 29 and 30 August 2012, the Court should disregard the assertion made by Grocon 304 that “the subject matter of the second contempt application is continuing and related conduct by the CFMEU”. The CFMEU says there is no charge to that effect. It says that no such evidence is sought to be admitted as tendency evidence pursuant to s 97(1) of the Evidence Act 2008 .
313 The CFMEU identifies the relevant allegations as being that on each of 29 and 30 August 2012, the CFMEU, through its agents, prevented, hindered or interfered with the free access pleaded by gathering in large groups, leaving “no clear path” in the eyes of McAdam.
314 According to the CFMEU, the evidence relied upon by the applicants in this regard is weak. The CFMEU accepts that its officials were present and active at the site and
304 Grocon’s written closing submissions dated 5 October 2012 para 122. SC: 112 JUDGMENT
that other persons, some wearing CFMEU-branded clothing, were also present. However, it says that none are proved to be “under CFMEU authority”. It accepts
that an anonymous person sang CFMEU songs on 30 August. It accepts that McAdam saw no way through the crowd, some of whom wore CFMEU tops, on 29
August, and that McAdam saw what he called a “presence of blockaders” on 30 August. It acknowledges that video footage confirms that amongst the crowds on
each day were some persons with CFMEU jumpers and some with ETU jumpers but by far the majority, it says, with no branded clothing at all.
315 The CFMEU submits that the applicants rely upon a “formulaic” collection of
evidence to link the CFMEU to these men: on each charged date, the applicants prove the presence of CFMEU officials, the presence of people (some wearing union garments), the presence of CFMEU paraphernalia, and the singing of certain songs. Evidence of what the CFMEU calls “post-facto ratification” of protestors’ acts is led.
316 The CFMEU adopts, in respect of these days, the same criticisms it made in respect of 28 August concerning the link between the acts of the “protesting crowd” and the CFMEU officials present. It contends that there is no evidence that the CFMEU actions, whatever these were, had a causal link to the actions of the crowd of protestors.
317 More fundamentally, the CFMEU says, these charges are entirely artificial. It says that there were no “persons engaged to work on the Emporium site that day” either on 29 or 30 August 2012. All were redeployed at about 5pm the previous day. According to the CFMEU, McAdam’s claim that he did not attempt entry because “large groups of persons were standing in front of the entrances to the Emporium” is of very little assistance to this Court. Further, there was no attempt made to enter the site. Finally, McAdam’s failure to see a “clear path” is a very weak basis for finding any impediment to access.
318 The CFMEU submits that these allegations should be dismissed.
SC: 113 JUDGMENT
Emporium site: 31 August 2012
319 The CFMEU adopts in relation to these charges the arguments it has made in relation to the 29 and 30 August charges.
320 The CFMEU says that these charges are based on its alleged agents simply being present.
321 According to the CFMEU, these charges too are artificial but for a different reason.
The “persons engaged to work on the Emporium site on that day” all entered the Emporium site. It may be inferred, the CFMEU says, that this occurred both
precisely when they chose to enter and that they were unmolested. There is no evidence, the CFMEU says, that Grocon or the “persons employed” would have acted any differently on that day in the absence of the CFMEU officials and their proved activities. According to the CFMEU, it is not possible to say, beyond reasonable doubt, that this charge is proved.
322 Furthermore, the CFMEU says that it is irrelevant that McAdam entertained a concern for the Grocon workers on the afternoon of 31 August, a time outside the pleaded period of the offending. In any case, it says, McAdam’s expressed concern is far too remote a basis for finding that the CFMEU prevented, hindered or interfered with free access as pleaded.
323 Likewise, for the same reasons, the CFMEU says that the charge of procuring (and its alternatives) should be dismissed.
McNab site: 5 September 2012: first semi-trailer incident
324 The CFMEU submits that the allegation relating to the first semi-trailer incident near the McNab site must fail for lack of evidence. It says that while the Court might find that CFMEU officials spoke to the driver of the semi-trailer, that is as far as the evidence can progress.
SC: 114 JUDGMENT
325 The CFMEU says that the focus must be on the driver, not the vehicle. It says that there is no evidence that the driver tried to enter McNab Avenue; no evidence as to
why he did not enter; no evidence that, whatever the reason for that was, his free access was prevented, hindered or interfered with by the CFMEU. Further, the
CFMEU says, there is no evidence concerning what was said to the driver by any CFMEU official or how he responded. There is no evidence of any conversation he
had with his employer, or any instruction that the employer gave. According to the CFMEU, what passed between Sgt Thompson and this driver is irrelevant to the
issue.
McNab Avenue: 5 September 2012: second semi-trailer incident
326 The CFMEU contended that it was not proved beyond reasonable doubt that the semi-trailer which arrived on the second occasion was the same vehicle, but I have already found to the contrary. It says that it has not been proved that the driver was the same or that CFMEU officials or their agents spoke to the driver, although someone did. Furthermore, according to the CFMEU, the same evidentiary gaps exist in relation to this occasion as exist in relation to the earlier occasion and the charge simply cannot be made out.
Resolution of the remaining issues
327 With great skill and diligence, counsel for the CFMEU have said everything that could possibly be said on behalf of their client in these contempt proceedings, both in writing and orally. However, having regard to my findings of primary fact set out above and all of the material and submissions before me, I am satisfied that each charge of contempt has been proven beyond reasonable doubt.
328 Generally speaking, I accept the submissions of the applicants on the remaining issues.
329 I will indicate where and why I depart from the submissions of the CFMEU on those issues.
SC: 115 JUDGMENT
330 It is true that a strict construction of orders and charges is necessary in contempt cases. 305 However, the CFMEU’s submission that the orders only apply where an
actual attempt or request to gain access is made cannot be accepted. Plainly, the orders are broader than that.
331 It is clear on the face of the orders, beyond any doubt, that the very purpose, and the
effect, of the orders is to restrain the CFMEU from deliberately causing or maintaining any obstruction to either site. I accept the written submissions of the
Attorney-General on this point, as summarised above, with their emphasis on the word “free”. I accept also the oral submissions on this point made by Mr McDonald
(for Grocon) at the final hearing, 306 including his reliance on the cases referred to in this context in Grocon’s written submissions.
332 As Grocon submits, 307 obstruction can be physical or it can come in the form of intimidation. It need not be total. For something to be an obstruction, it would generally not need to be ‘tested’ to see if it could be safely overcome. 308
333 In McFadzean v CFMEU ,309 the Court of Appeal considered what constituted an ‘obstruction’ within the context of public nuisance. Pertinently, Grocon cites the following paragraphs from the judgment of Warren CJ, Nettle and Redlich JJA:
The respondents argue, to the contrary, that it was open to the judge to conclude that there was no obstruction because it was not shown that the appellants attempted to pass or repass along the road during the relevant time, or alternatively on the basis that such if any hindrance as there may have been was not shown to have rendered it physically impossible for the appellants to pass had they wished to do so.
We do not agree. As we say, we see no reason to doubt the judge’s findings of fact, and therefore we proceed upon the basis that it was not established that any appellant or other member of the public attempted passage or was hindered in the endeavour. But obstruction may be proved without proof that a member of the public was in fact obstructed . As Griffith CJ put it in Haywood v Mumford , the question is simply whether what was done amounted to an obstruction:
305 Bovis Lend Lease Pty Ltd v CFMEU (2009) 254 ALR 306, 317-318 [51]-[54]. See also my judgment in Livingspring Pty Ltd v Ng [2007] VSC 9. 306 Transcript (18 October 2012) 205-207, 214-217. 307 Grocon’s written closing submissions dated 5 October 2012, [128]. 308 McFadzean v CFMEU (2007) 20 VR 250 [122]; Haywood v Mumford (1908) 7 CLR 133, 138. 309 (2007) 20 VR 250. SC: 116 JUDGMENT
… it is not necessary that anybody should in fact be passing down the street while the obstruction is there. The question is whether the obstruction is there? As I pointed out in argument, it would be a very singular thing if, in the case of a log laid across a foot way, the person who put it there could be allowed to say that there was no obstruction because nobody fell over the log. In my opinion the conviction was right, and upon the facts the magistrate could not have come to any other conclusion.
Equally, it is clear that an obstruction need not be total in order to amount to a nuisance. While the action for false imprisonment could not be maintained in Bird v Jones , Patteson J considered that an obstruction which prevented the plaintiff from proceeding in one particular direction on the public highway undoubtedly gave rise to an action on the case for obstructing the passage. Fullagar J took a similar view in Williams v Hursey .
More generally, any unreasonable or excessive use of a highway or activity on or near the highway which renders the highway less commodious to the public is enough to constitute a nuisance. So, for example, it is a nuisance to place logs on a public highway though it may remain possible for the public to steer a course around the logs; or for a merchant continuously to keep vans before the door of his shop in a fashion that practically appropriates part of the roadway for his business; or for a theatre to allow stationary crowds of patrons to block a substantial part of the street as they enter or exit the theatre; or to maintain a picket with a view to compelling persons not to do acts which it is lawful to do. 310
334 As Grocon further submits, the judgment of Griffith CJ in Haywood v Mumford 311 was also cited by Kelly J of the Supreme Court of the ACT in O’Dea v Castle. 312 In that case, there had been a picket at Parliament House in which the appellant, Mr O’Dea, who was a member of the Builders Labourers Federation, had participated. Kelly J found that access to Parliament House has been physically possible. He said: 313
I am satisfied that there was a passage left between the group, of which the appellant formed one, and the northern wall of the Parliament House building immediately to the west of the main doors through which a person wishing to enter the Parliament might have done so. However, at various times such a person could have been at risk of having the Eureka flag blow in his face.
Nevertheless, Kelly J was satisfied that at the relevant time ‘free’ entry to and exit from the Parliament by members and others was inhibited since, to get into the Parliament, those persons would have had to take the passage or passages left by
310 (2007) 20 VR 250 [121]–[124]. Footnotes omitted, and underlining added, by Grocon. 311 (1908) 7 CLR 133. 312 Unreported, ACT Supreme Court, 19 April 1983. 313 At page 6. SC: 117 JUDGMENT
those persons present on the portico of Parliament House, including the group of which the appellant was one. Kelly J was satisfied that the impediment by the
‘channelling’ of access into the Parliament constituted an ‘obstruction’ as that word ought properly to be understood. His Honour applied the following passage from
the judgment of Griffith CJ in Haywood v Mumford :314
In my opinion, the term ‘obstruction’ as used in the Police Offences Act 1890 , includes any continuous physical occupation of a portion of a street which appreciably diminishes the space for passing and repassing, or which renders such passing or repassing less commodious, whether any person is in fact affected by it or not. In the nature of things such a diminution of available space might be made by a single individual, although that is unlikely. For instance, a man who stood in the middle of the road with his arms stretched out or holding something in his hands might so appreciably diminish the available space. A crowd of persons standing in the street would certainly do so, and, if they were acting in concert, they would all be sharers in obstructing the street.
The lawfulness or unlawfulness of the obstruction is immaterial.
335 It cannot be doubted that the blocking by a third party of even one of multiple means of access to a building site may amount to preventing “free” access, and all the more so when the entry point blocked is the normal entry point, or one of the normal entry points, to the site. A fortiori , such blocking may amount to hindering or interfering with free access.
336 In my view, “free” access may be prevented, hindered or interfered with where access is made more difficult by an obstruction, even if persons might still be able to access the site. It follows that if the CFMEU is found to have obstructed access to
even one point of entry to the site, it may have prevented, hindered or interfered with free access.
337 Arguably, the expression “preventing, hindering or interfering with”, which precedes the expression “free access” in the relevant orders, carries with it a sense of deliberateness. In favour of the CFMEU, I will assume (without deciding) that it does. Therefore, if the CFMEU, though responsible for the presence or conduct at the relevant building site of the persons in question, did not intend that the presence
314 (1908) 7 CLR 133, 138. SC: 118 JUDGMENT
or conduct of those persons would obstruct access to the site, then there may be a question whether the order would be infringed, even if obstruction did occur.
However, if obstruction did occur, and if the CFMEU were responsible for the presence or the conduct of the persons in question, and did intend that their
presence or conduct would obstruct access to the site, then, in my view, the CFMEU would clearly have prevented, hindered and interfered with “free“ access to the site.
338 The CFMEU argues that the relevant orders could not have been intended to prohibit
lawful protests that result in short delays, discomforts or anxieties, and that, if it were otherwise, such orders would be draconian. 315 However, given my findings of
primary fact as set out above, this submission is of no assistance to the CFMEU. Even if the gatherings of people at the relevant sites were properly characterised as “protests”, they caused far more than short delays, discomforts and anxieties. Each incident lasted many hours and consisted for the most part of static gatherings of large numbers of persons. 316 As further explained below, I am satisfied beyond reasonable doubt that the gatherings were intended by the CFMEU to cause, and did cause, obstruction to access to the sites and, as an intended result, disruptions to work at the sites.
339 In any event, the CFMEU’s submission begs the question whether or not the gatherings constituted lawful protests. In McFadzean v CFMEU , to which I have already referred, the CFMEU deployed various vehicles in such a way that the vehicles blocked a public road leading to an anti-logging protest site, with the result that anti-logging protestors already at the site could only obtain egress by walking 1.5 kilometres through dense bushland and then obtaining transport or, potentially, by asking police for assistance to leave (although the CFMEU had maintained that anti-logging protestors would not be let through the picket, even with police assistance). The Court considered and rejected a submission by the CFMEU, similar
to the submission that it makes in the present case, that any obstruction caused was the result of a lawful protest:
315 Addendum, [5]. 316 See the further reference to McFadzean v CFMEU below. SC: 119 JUDGMENT
Counsel for the respondents faintly suggested that the respondents’ use of the road was reasonable because it was in furtherance of an industrial picket. We reject that suggestion. Processions may use a public road for passage on lawful occasions for lawful objects provided that the use is reasonable. But a static demonstration or picket is of a different order. A picket line which threatens obstruction of the thoroughfare and besetting of those who wish to travel on the roadway so as to cause persons to hesitate through fear to proceed constitutes an unreasonable obstruction amounting to a public nuisance and an interference with private rights. It amounts to an unreasonable restriction upon the right of an individual to free movement on a roadway. A public road is primarily for free passage of the public for all reasonable purposes. An assembly of persons on a public road which significantly affects free passage is in its nature irreconcilable with the right of free passage, and therefore a public nuisance. It is also a summary offence. 317
In my view, to the extent that the gatherings in question caused substantial interference with traffic on the public roads of the Melbourne CBD, they were
probably not lawful protests.
340 As the CFMEU was at all times aware, each of the relevant orders of this Court was made in response to unchallenged allegations of obstructive picketing. For many years, the courts have made orders, expressed in the same fashion as these orders, in response to, and to restrain, obstructive picketing. 318
341 It is clear beyond doubt that the relevant orders of the Court had the effect, at least, of restraining the CFMEU from deliberately causing any obstruction to access to either construction site via any point of entry to the site, whether or not the obstruction resulted from a “lawful protest”.
342 These observations represent a complete answer to all those submissions of the CFMEU that assume the necessity for an attempt or a request to gain access to the site and to all of its submissions that assume that obstructing only one, or less than all, entrances to the site may not amount to the prevention of “free access”. It also
renders the particular ruling of Tracey J in Bovis Lend Lease Pty Ltd v CFMEU 319 , on which the CFMEU relies, plainly distinguishable. It should also be noted that the
317 [2007] 20 VR 250, 282, 283 [126] (footnotes omitted). 318 See, eg, Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143; Mine Management Pty Ltd v CFMEU (1999) QSC 56; Australian Workers Union v Pilkington (Aust) Ltd [2000] FCA 1169; Tycan Australia Pty Ltd v AFMEPKI [2002] VSC 168. 319 (2009) 254 ALR 306, 326 [90]. SC: 120 JUDGMENT
form of the relevant order being considered by Tracey J was somewhat different. It referred to obstructing or interfering with the “passage” of any person. It did not
refer to “access”, much less “free access”.
343 On the other hand, turning to the next of the CFMEU’s written submissions as outlined above, I accept that it would be oppressive to impose convictions or to
make findings of contempt on both the principal charges and the corresponding causing/procuring/inciting charges. I am not persuaded by Mr McDonald’s oral
submissions to the effect that the matters charged are sufficiently distinct to warrant separate findings of contempt. 320
344 I turn to the CFMEU’s submission that the presence of the large numbers of “protestors” on the days in question amounted to mere inaction and that, as a result, the applicants needed to prove a threat of genuine violence or aggression. The submission cannot be accepted. This was not a case of mere inaction. Indeed, there was a great deal of action on the part of the assembled groups of men, at least on 28 August and 5 September 2012. Moreover, if the CFMEU procured the attendance of the men or directed their conduct, then that was action, not inaction, on its part. In any event, on each of 28, 29, 30 and 31 August the men were, by standing close to each other in large numbers, causing an obstruction to at least one normal entry point to the Emporium site. At the McNab site, the men in question took active steps to stop the progress of the semi-trailer. “Free access” was prevented on each day. It is not necessary for the applicants to prove a superadded threat of violence or
aggression. The contrast with the “serious criminal behaviour” referred to in the MUA case is irrelevant.
345 Turning to the CFMEU’s next point, I do not accept that there are reasonable inferences open that the crowds, as such, attended at the Emporium site other than because they were procured or caused to attend by the CFMEU. A few individuals might perhaps have attended for their own reasons independently of any steps taken by the CFMEU to cause or procure their attendance, but not the hundreds and
320 Transcript (18 October 2012), 207-213. SC: 121 JUDGMENT
hundreds of men who attended early in the morning, morning after morning, at considerable personal inconvenience and risk. I agree with the Attorney-General
that that proposition is absurd.
346 It is possible that the ETU or other unions might have had some minor involvement. But that would not matter. All the evidence points directly and inexorably to the
CFMEU as being, at the very least, the main organiser, if not the sole organiser, of the “protests”. Any role played by any other union or anyone else could only have been
minor and subordinate. I have come to that conclusion because I accept the applicants’ submission that the fact that the CFMEU caused the attendances of the
crowds at the sites and directed their conduct there is put beyond any doubt at all by the accumulation of circumstances disclosed by the evidence, including, among many other things:
• the context supplied by the bitter industrial dispute between the CFMEU (alone) and the Grocon group;
• the prior picketing that had occurred in support of the CFMEU’s cause in the industrial dispute;
• the repeated attendance at the Emporium site of several very senior CFMEU officials;
• the array of CFMEU paraphernalia at the “protests”;
• the significant number of persons present who were wearing CFMEU branded clothing (whether or not in the majority); and
• the numerous public statements made by the CFMEU and its officials claiming ownership of the dispute and of the “protests”, including
(i) the CFMEU flyer stating that “it will be a long time before shoppers enjoy the new Myer Emporium unless Grocon changes its ways”;
SC: 122 JUDGMENT
(ii) the statement by Oliver to the ABC News on 28 August that the rally that morning had been “disciplined”;
(iii) the proud boast by Edwards on the loud hailer on 28 August to the
effect “Back here tomorrow boys for more fun”;
(iv) the stirring speeches by Christopher on 28 August 2012 and his leading
of the chants referring to the CFMEU;
(v) Edwards’ assertion on the loud hailer on 31 August that “we have laid
siege to this job”;
(vi) the statement by Oliver on the CFMEU website on 31 August that “we” were willing to lift “our” picketing of Grocon;
(vii) the statement by Oliver to the ABC News on 4 September 2012 complaining that Grocon did not agree to a term of settlement that, after 14 days, “we” could come back and “take more peaceful demonstrations”.
347 Turning now to the CFMEU’s submissions concerning the events at the Emporium site on 28 August in particular, I consider that, for the reasons already given, it does not matter whether there was an attempt by the Grocon workers to enter the site on that day or whether there was an attempt by the police to facilitate the entry to the site of the Grocon workers. As it happens, and as indicated in my findings of primary fact, I am satisfied by McAdam’s evidence, beyond reasonable doubt, that McAdam, Grocon and the workers themselves genuinely intended that the workers should cross to the Emporium site that morning and also that there was some plan in place in this regard to which the police were a party. I note again that McAdam and the rest of the Grocon group were “waiting for the police signal to cross”.
348 On any view, the presence of the “protestors” constituted a physical barrier that made free access impossible, in the sense that access via a particular path that the workers might wish to take was impossible. The clash involving the police horses SC: 123 JUDGMENT
only demonstrates the determination of the CFMEU officials and the assembled men (and, through both of them, the CFMEU) to resist any outside attempt to interrupt
their stance.
349 It is fanciful to suggest, as the CFMEU did during final oral submissions, that the police horses might have been advancing for the purpose of rescuing a fallen police
officer. There is no evidence that there was any fallen police officer. Whether or not the waiting Grocon workforce had been seen by the relevant persons in the
gathering, it is hard to credit that the persons gathered, including the CFMEU officials, did not at least suspect that the purpose of the advance of the police horses
was to try to facilitate the entry of Grocon workers into the Emporium site. After all, those workers, for one reason or another, had not accessed the site for some days. Further, the altercation happened at what would have been normal starting time for the Grocon workforce.
350 Given that the deliberate obstruction by the CFMEU of any one entrance to the Emporium site would have been enough for a breach of the order, there is no point in debating whether what was occurring at the Emporium site amounted to a “blockade”.
351 The omission on the part of the applicants to “poll” the crowds at the Emporium site is of no significance. I have already indicated that I am satisfied beyond reasonable doubt on the evidence that has been led that the attendance of the crowds was procured by the CFMEU. It can hardly be said that anyone in the crowd was likely to be cooperative with an inquiry from Grocon or the police as to who had procured their attendance.
352 For the reasons already given, I am satisfied beyond reasonable doubt that there was a defacto refusal of access. Further proof of this is supplied by Setka’s hostile and insulting reaction to the Grocon worker who said to him, just after 7.00 am, that the Grocon workers just wanted to go to work.
SC: 124 JUDGMENT
353 For the reasons already stated, I am satisfied beyond reasonable doubt that the CFMEU did cause the crowds to “gather … and prevent” access to the Emporium
site. Hence the procuring etc charges, as well as the principal charges, are made out.
354 Contrary to the CFMEU’s submissions, I see no real ambiguity in the words of Edwards to the crowd over the loud hailer: “Back here tomorrow boys for more
fun”. In my view, he was plainly inciting the crowd to return to the Emporium site on the next day and to conduct themselves in much the same way as they had on
28 August. Edwards is a senior CFMEU official. Quite properly, counsel for the CFMEU effectively concedes that the acts of all of the named officials, including
Edwards, are legally attributable to the CFMEU. The charge of incitement based on the words of Edwards is proven beyond reasonable doubt.
355 As to the charges relating to 29 and 30 August 2012, I do not accept the CFMEU’s submission that I should disregard the assertion made by Grocon that “the subject matter of the second contempt application is continuing and related conduct by the CFMEU”. In my view, it is irrelevant that the CFMEU has not been charged with a continuing offence or a “between dates” offence. The conduct the subject of the second application certainly was continuing and related conduct by the CFMEU, in the sense that, obviously, it was conduct inextricably bound up with the ongoing industrial dispute between the CFMEU and Grocon. It would be completely artificial and wrong to consider the events that occurred on each of the pleaded days in isolation from the events that occurred on the other pleaded days. Tendency evidence is not involved. Section 97(1) of the Evidence Act 2008 is irrelevant.
356 For the reasons already given, and in the light of my findings of primary fact, there is every reason to infer that the stance of the members of the crowd on 29 and 30 August 2012 was exactly the same as the stance of the members of the crowd on 28 August. Because of the crowds’ stance, McAdam could see no clear path to the Emporium site via the entrances near Gate 1. I have no doubt at all that the crowds present on 29 and 30 August 2012 would have refused any request to allow a “clear path” to open up in their midst if the path was to be used by Grocon workers. The SC: 125 JUDGMENT
assembly of men constituted an obstruction to access to the sites. I am satisfied beyond reasonable doubt that the CFMEU caused or procured their attendance and
their behaviour.
357 This charge does not fail because of the redeployments that occurred at 5.00 pm on the previous days. I accept Mr McDonald’s submission 321 that the notion of
redeployment is in fact consistent with the workers doing something other than what they would be doing in the ordinary course of business. These workers
remained workers who were engaged by Grocon to work on the Emporium site on 29 and 30 August 2012 because that is what they would have been doing in the
ordinary course of business. The prior redeployments were disclosed in Grocon’s evidence that was served with the second summons. The CFMEU cannot ever have been in any doubt about the way the charges were being put. These charges are proven beyond reasonable doubt.
358 A large crowd attended again in the same vicinity on 31 August 2012, although it was kept some distance from the Emporium site by a series of temporary fences, and approximately 80 police officers were between the temporary fences and the site. The crowd had the same stance and attitude as the previous crowds. I am satisfied beyond reasonable doubt the CFMEU had procured the attendance of the crowd and was directing its conduct.
359 It is true that some workers obtained access to the site on this day, but only with the elaborate assistance of the police. Furthermore, only 30 workers managed to obtain access as compared with the normal complement of about 90. The video footage confirms at 6.26 am the crowd was dense and spanned in a westerly direction from Swanston Street down Lonsdale Street and that, at this time, no vehicular passage was possible on Lonsdale Street due in part to the large group of static persons. At 7.20 am members of the crowd were gathered on the road at the intersection of
Swanston and Lonsdale Streets, blocking traffic along both streets. Seven CFMEU officials were in attendance during the morning of 31 August 2012. They are listed
321 Transcript (18 October 2012) 244. SC: 126 JUDGMENT
above. One of them, Edwards, addressing the crowd on a loud hailer at 5.42 am, said, among other things, “We are here to stay. We have laid siege, we have laid
siege to this job and we’re not going away … we’re not here to have a brawl … we are disciplined, we are organised, and that’s what’s got us the wages and conditions
that this industry pays”. He also said: “Whatever provocation occurs, laugh at ‘em. Why? Because we should be happy. The police have shut down the city for us.
Here to stay, right?” This was met with cheers from the crowd.
360 In all the circumstances, I am satisfied beyond reasonable doubt that the free access of Grocon employees to the Emporium site was prevented (and hindered and
interfered with) by the CFMEU on 31 August 2012.
361 Turning to the McNab site, having regard to my findings of primary fact there can be no doubt at all that free access to that site was prevented by the CFMEU on the morning of 5 September 2012. The video evidence really does speak for itself. I have already found that it was the same truck on both occasions. It is overwhelmingly likely that it was the same driver too. The semi-trailer was physically interrupted in its journey. It was undoubtedly en route to the McNab site. Setka and Reardon almost certainly spoke to the driver on the first occasion. Reardon also addressed the assembled men. Even if the reason why the driver ultimately did not proceed was that he was persuaded of the rightness of the CFMEU’s cause, it would not avail the CFMEU. The men present had already obstructed, and thereby prevented, the free access of the vehicle to the McNab site.
362 Once again, the CFMEU effectively concedes that the conduct of Setka and Reardon must be treated as the conduct of the CFMEU. Even though both of them had left by the time of the second truck arrival, there remained persons wearing CFMEU clothing amongst the assembled men and Reardon had previously addressed them.
363 In all the circumstances, I am satisfied that the CFMEU prevented free access by the semi-trailer to the McNab site twice on 5 September. On the other hand, the two
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incidents were not very far apart in time and they were related. I consider that a single finding of contempt is sufficient.
Conclusion
364 For the reasons stated above, I have concluded that all 30 of the extant charges against the CFMEU have been made out, but that it is sufficient to record only five
findings of contempt, being one for each of the relevant days.
365 It being agreed between the parties that any question of penalty must be deferred for
further hearing and determination, I will hear counsel in due course as to their proposals for the further progress of these proceedings.
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