FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABCC v CFMEU (Pacific Highway Upgrade Case) (No 2) [2022] FedCFamC2G 62
File number(s): SYG 2015 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 2 February 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act – whether evidence can be adduced in reply during civil case – whether applicant’s case can be reopened – whether defendant’s evidence reasonably foreseeable – grant leave to reopen case and present limited evidence. Legislation: Fair Work Act 2009 (Cth) ss 500, 550, 793 Cases cited: Australian Building and Construction Commissioner v Collier and Ors [2017] FCCA 1964
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
The Movie Network Channels Pty Ltd v Optus Vision Ltd [2009] NSWSC 132
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 2 February 2022 Date of hearing: 1-2 February 2022 Place: Sydney Counsel for the Applicant: Mr Chin Solicitor for the First Respondent: Mr Simic Counsel for the Second and Third Respondents: Mr Latham ORDERS
SYG 2015 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
MR DEAN LESLEY RIELLY
Second Respondent
MR PAUL FITZPATRICK
Third Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
2 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Grant leave to present evidence in rebuttal given by one witness, Mr Jordan, limited in scope to the singular issue whether a concrete truck reversed in the presence of the second and third respondent..
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
In application filed on 26 August 2020, the Australian Building and Construction Commissioner (“ABCC”) seeks relief in the form of declarations and the imposition of pecuniary penalties against the first respondent, the Construction Forestry, Maritime, Mining and Energy Union (“CFMMEU”) and two of its employees, Mr Rielly and Mr Fitzpatrick.
The ABCC alleges contraventions of s 500 of the Fair Work Act 2009 (Cth) (“the Act”) by Mr Rielly and Mr Fitzpatrick on 22 August 2019 at the Woolgoolga to Ballina Pacific Highway upgrade project. The proceedings against the CFMMEU proceed on the basis of accessorial liability, by reason of the operation of ss 793 and 550 of the Act, in that Rielly and Fitzpatrick were employees of the CFMMEU at the relevant time.
It is broadly alleged that Mr Rielly and Mr Fitzpatrick entered a work site, and positioned themselves in between the rear of a concrete…
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- Case
- [2022] FedCFamC2G 62
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to address included whether the court should exercise its discretion to allow the reopening of the case under the Rich principle, and whether the respondents would be prejudiced if the application to reopen the case was allowed. The respondents argued that they had not been given sufficient time to prepare for the new evidence and that allowing the reopening of the case would prejudice their ability to defend themselves effectively. They further contended that the new evidence did not meet the criteria set out in the case law for reopening a case.
The court considered the discretion it had to allow the reopening of the case and weighed this against the interests of justice. The court found that the evidence in question, which pertained to whether a cement truck had reversed without a spotter being present, was critical to the case and could not have been reasonably foreseen by the respondents. The court also noted that the respondents had chosen not to present any evidence initially, which might have influenced the outcome of the reopening application. Ultimately, the court concluded that the interests of justice would be better served by allowing the reopening of the case to permit the calling of rebuttal evidence.
In its final orders, the court granted leave for the case to be reopened to allow for the presentation of rebuttal evidence from one witness, Mr. Jordan. This decision was based on the court's assessment that the evidence was crucial to the case and that the respondents would not be unduly prejudiced by the delay in presenting this evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It was submitted that serious consequences could flow from a finding against the second and third respondents which could include orders that the right of entry permits be revoked further and that even if the criteria in Rich were satisfied, the Court should not in any event exercise its discretion to allow rebuttal evidence be called, Mr Jordan had already been called as a witness. The respondents were not provided with a copy of the draft Affidavit of Mr Jordan until after Mr Rielly had given evidence. The respondents are prejudiced and they cannot put this new evidence to witnesses who have already given evidence.CONSIDERATION The case law referred to above makes it clear that leave to reopen a case once closed is a discretionary matter for the Court. As this case has developed and evidence has been called, it is clear that a central issue will revolve around whether or not the cement truck/agitator reversed as claimed by Mr Rielly on two occasions without a spotter being present. Mr Rielly and Mr Fitzpatrick claim that there were imminent dangers which needed to be attended to in order to enable, in their view, the pour to go ahead. From the Courts limited view of the matter, and without making any final determination, the other matters that apparently caused issues relating to first-aid, eye wash, positioning of toilets, drinking water, and emergency response, which were outlined in the s 117 of the Act notice provided by the Union delegates to Seymour Whyte Management, were not such that they approached an imminent danger to workers. The essential issue of imminent danger revolved around the positioning of the cement truck/agitator and whether or not it could or did reverse without a spotter being present to guide it back. In terms of the factors set out in Rich, the proceedings in which the application is being made are a prosecution under the Fair Work Act. The proceedings are not criminal in nature, however they involve the possibility of significant pecuniary penalty being imposed upon both the union and each of the delegates. The Court is not satisfied based on the limited cross examination undertaken by Counsel for the respondents that this issue ought to have been reasonably foreseen. The evidence in chief of Mr Reilly, noting that it was not supported by Mr Fitzpatrick in his Affidavit, was that the cement truck/agitator reversed on two occasions without a spotter being present. Whilst noting that the respondents are reasonably entitled to know all the evidence they have to meet in taking forensic decisions as to cross examination and the nature and extent of the evidence that they will themselves adduce, the Court notes that the respondents chose not to put on any evidence initially but to reserve the right to silence. As set out above, whilst this cannot be criticised, it may well have the consequence that leave to reopen will be granted in circumstances where had their evidence been put on earlier, such an application might be refused.