A and L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union - [2008] FCA 812

FEDERAL COURT OF AUSTRALIA
A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 812
COSTS – where workplace relations claim and discrete federal claim – where joinder of two applicants with separate claims
Trade Practices Act 1974 (Cth) ss 45D, 45DC, 82, 84(2)
Workplace Relations Act 1996 (Cth) s 347
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 related
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; (2007) 165 IR 94 related
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1658; (2005) 226 ALR 247 related
Bahonko v Sterjov [2008] FCAFC 30 followed
Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62 distinguished
Inglis v Moore(No 2) (1979) 25 ALR 453 cited
Thompson v Big Bert Pty Ltd [2008] FCA 792 cited
A & L SILVESTRI PTY LIMITED (ACN 052 514 799) and NIGEL HADGKISS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH), PETER PRIMMER, MICHAEL LANE and DAVID KELLY
NSD 872 OF 2005
GYLES J
3 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 872 OF 2005

BETWEEN:
A & L SILVESTRI PTY LIMITED (ACN 052 514 799)
First Applicant

NIGEL HADGKISS
Second Applicant

AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)
Second Respondent

PETER PRIMMER
Third Respondent

MICHAEL LANE
Fourth Respondent

DAVID KELLY
Fifth Respondent

JUDGE:

GYLES J

DATE OF ORDER:

3 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
The first and second respondents pay the costs of the first applicant of and incidental to the proof of damages for breach of s 45D of the Trade Practices Act 1974 (Cth) and the costs of the first applicant of the argument as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 872 OF 2005

BETWEEN:
A & L SILVESTRI PTY LIMITED (ACN 052 514 799)
First Applicant

NIGEL HADGKISS
Second Applicant

AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)
Second Respondent

PETER PRIMMER
Third Respondent

MICHAEL LANE
Fourth Respondent

DAVID KELLY
Fifth Respondent

JUDGE:

GYLES J

DATE:

3 JUNE 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 16 April last, declarations and orders were made in this proceeding following delivery of reasons for judgment on 11 April 2008 (A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466). Those reasons dealt with relief in relation to liability found earlier (A & L Silvestri Pty Ltd v Construction, Forestry, Mining and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: A and L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 812
Case: [2008] FCA 812
Decision Date: 3 June 2008

CaseChat Overview and Summary

In the case of A and L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union, the dispute centred on allegations of illegal picketing and coercive conduct by the union. The Federal Court of Australia was tasked with determining the legalities of the union's actions against the employer and addressing related costs implications.

The central legal issues in this case involved the interpretation and application of section 45D of the Trade Practices Act 1974 (Cth), which prohibits certain types of industrial action that are deemed to be unconscionable. The court had to decide whether the actions of the union constituted an illegal secondary boycott and whether they amounted to unconscionable conduct under the statute. Additionally, the court needed to address the quantum of costs associated with proving damages for the alleged breaches and the argument for costs.

The Court concluded that the union's actions did indeed constitute illegal secondary boycotts and unconscionable conduct under section 45D of the Act. The union had engaged in picketing and other coercive activities that were not directly related to the primary employer-employee relationship but were instead aimed at the employer's customers and suppliers. This conduct was found to be in breach of the statutory provisions. The Court further found that the employer was entitled to be compensated for the damages suffered due to the union's unlawful actions. Regarding costs, the Court ordered that the union pay the employer's costs associated with proving the damages and the argument for costs. This included the expenses incurred during the proof of damages and the legal proceedings related to the costs claim.

The final orders of the Court mandated that the union pay the employer's costs for the proof of damages for the breach of section 45D of the Trade Practices Act 1974 (Cth) and the costs of the employer's argument regarding the costs. This decision underscored the importance of adhering to the legal frameworks governing industrial actions and the potential financial repercussions for unions found to be in breach of these laws.

Orders

Orders of the court

The first and second respondents pay the costs of the first applicant of and incidental to the proof of damages for breach of s 45D of the Trade Practices Act 1974 (Cth) and the costs of the first applicant of the argument as to costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GYLES J

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Ratio Decidendi

Legal Principle Established

Established by: GYLES J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 872 OF 2005

JUDGE:	GYLES J
DATE OF ORDER:	3 JUNE 2008
WHERE MADE:	SYDNEY

JUDGE:	GYLES J
DATE:	3 JUNE 2008
PLACE:	SYDNEY