Abigroup Contactors Pty Ltd v Construction, Forestry, Mining And Energy Union and Ors (No.2)

[2013] FCCA 1472

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABIGROUP CONTACTORS PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS (NO.2) [2013] FCCA 1472

Catchwords:
PRACTICE AND PROCEDURE – Striking our pleading – derivative liability – whether material facts have been pleaded – particulars.

Legislation:

Fair Work Act 2009, s.793
Fair Work (Registered Organisation) Act 2009, s.24

Applicant: ABIGROUP CONTACTORS PTY LTD

First Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES

Third Respondent: JOSEPH MYLES

Fourth Respondent: MICHAEL MYLES

Fifth Respondent: MARK O’BRIEN

Sixth Respondent: TROY JAMES

Seventh Respondent: STEFAN TURNER

Eighth Respondent: TONY FLORO

Ninth Respondent: STEPHEN MCINTYRE

Tenth Respondent: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Eleventh Respondent: CHRIS LYNCH

Twelfth Respondent: KEITH MCKENZIE

Thirteenth Respondent: PETER ONG

Fourteenth Respondent: DENNIS STRANO

Fifteenth Respondent: ROBERT CARNEGIE

Sixteenth Respondent: PETER BRANSDON

File Number: BRG 714 of 2012

Judgment of: Judge Jarrett

Hearing date: 3 June 2013

Date of Last Submission: 3 June 2013

Delivered at: Brisbane

Delivered on: 26 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Murdoch QC

Solicitors for the Applicant: Minter Ellison Lawyers

Counsel for the Respondents: Mr White

Solicitors for the Respondents: Hall Payne Lawyers

ORDERS

1. Within 21 days of the date of these orders, the applicant file and serve a further amended statement of claim in accordance with these reasons for judgment.

2. Otherwise the claim for relief made in paragraph 1 of the application in a case filed on 31 May, 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 714 of 2012

ABIGROUP CONTACTORS PTY LTD

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES

Second Respondent

JOSEPH MYLES

Third Respondent

MICHAEL MYLES

Fourth Respondent

MARK O’BRIEN

Fifth Respondent

TROY JAMES

Sixth Respondent

STEFAN TURNER

Seventh Respondent

TONY FLORO

Eighth Respondent

STEPHEN MCINTYRE

Ninth Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Tenth Respondent

CHRIS LYNCH

Eleventh Respondent

KEITH MCKENZIE

Twelfth Respondent

PETER ONG

Thirteenth Respondent

DENNIS STRANO

Fourteenth Respondent

ROBERT CARNEGIE

Fifteenth Respondent

PETER BRANSDON

Sixteenth Respondent

REASONS FOR JUDGMENT

1. By their application in a case filed on 31 May, 2013 the first to thirteenth and sixteenth respondents (the respondents) seek orders that paragraphs 59, 64, 91, 96, 99, 114, 119, 143, 146, 149, 177, 180, 197, 200, 231, 236, 239, 280, 283, 286, 310, 313, 331, 334, 347, 352, 370, 373, 387, 390, 400, 411, 425, 428, 448, 453, 507, 512, 526, 531, 544, 549, 569, 582, 593, 609, 614 and 626 of the applicant's Amended Statement of Claim dated 12 February, 2013 be struck out.

2. Those paragraphs deal with the derivative liability of the first, second and tenth respondents (the union respondents) for the acts of the personal respondents or some of them.  The basis of the derivative liability is threefold.  The first two sources of derivative liability are statutory and relate to allegations that the respondents engaged in unprotected industrial action in breach of the Fair Work Act2009 (Cth). In that respect, the applicant relies on s.793 of the Fair Work Act and s.24 of the Fair Work (Registered Organisations) Act2009 (Cth). The third source of derivative liability relates to the applicant’s claims that the actions about which it complains constituted the tort of nuisance. The applicant alleges that the corporate respondents are vicariously liable for the actions of the personal respondents for those nuisances.

3. I will deal with the claims of derivative liability based upon s.24 of the Fair Work (Registered Organisations) Act first. Relevantly, s.24 provides:

   24  Certain actions considered to be done by organisation or employer

   (1)  For the purposes of this Division:

   (a)  action done by one of the following bodies or persons is taken to have been done by an organisation:

   (i)  the committee of management of the organisation;

   (ii)  an officer or agent of the organisation acting in that capacity;

   (iii)  a member or group of members of the organisation acting under the rules of the organisation;

   (iv)  a member of the organisation, who performs the function of dealing with an employer on behalf of other members of the organisation, acting in that capacity; and

   (b)  action done by an agent of an employer acting in that capacity is taken to have been done by the employer.

1. Section 24 appears in Division 3 of Part 2 of the Fair Work (Registered Organisations) Act. That Part provides for the registration of industrial organisations under that Act. Division 3 provides what constitutes prohibited conduct in relation to formation or registration of employee associations. No cause of action based upon conduct said to be prohibited under Division 3 Part 2 of the Act is pleaded in the Amended Statement of Claim.

2. Given the limited scope of the accessorial liability provided for in s.24 of the Fair Work (Registered Organisations) Act, it is difficult to see how the allegations of liability based upon those sections can succeed. No attempt was made in argument to support them. In my view the allegations that plead liability deriving from s.24 of the Fair Work (Registered Organisations) Act should be struck out.

3. As to the other matters, the respondents requested further and better particulars of the allegations made against them.  Further and better particulars were provided on 28 March and 3 May, 2013.  Whilst particulars are no substitute for the pleading of material facts upon which the claimed causes of action or the union respondents liability is based, in my view the facts pleaded by the applicant, when taken together with the further and better particulars, provide the respondents with a fulsome picture of the case that is made against them.  That is even more so when attention is paid to the fact that the applicant has filed numerous affidavits in support of its application. 

4. Directions have been made for the delivery of affidavits of evidence in chief in preparation for the trial of these proceedings.  The applicant has filed affidavits of the witnesses upon which it intends to rely.  In my view, it could hardly be said that the respondents will be taken by surprise given the pleadings, particulars and evidence that has been delivered.  The respondents have pleaded to the relevant allegations in the statement of claim, in some cases with bare denials, and in others with a more fulsome pleading.

5. As a whole and insofar as the liability of the union respondents depends upon s.793 of the Fair Work Act, the applicant’s case is that:

   a)there was ongoing industrial action at the Queensland Children's Hospital and Queensland Children's Hospital Energy Plant projects (as those terms are defined in the amended Statement of Claim);

   b)the union respondents were actively involved in organising, encouraging and/or controlling the industrial action through the individual respondents;

   c)The third to ninth and eleventh to sixteenth respondents were:

   i)union organisers employed by the first, second and/or tenth respondents or jointly employed by the first and second respondents, members of the Executive of the first and/or second respondents, delegates of the first or second respondents or agents of the first and/or second respondents;

   ii)engaged in conduct to encourage and organise the industrial action and the continuation of the industrial action and the maintenance of the picket line;

   iii)engaged in conduct taken as part of and to further the EBA campaign (as that term is defined in the Amended Statement of Claim) of the first and second respondents pleaded in paragraph 2 of the Amended Statement of Claim; and

   iv)acting within the scope of their actual or apparent authority as an officer and official.

   d)The conduct alleged in the paragraphs, as outlined in the Application, Statement of Claim and Particulars, should be taken to have been engaged in by the union respondents because the alleged conduct was engaged in on behalf of the first, second and tenth Respondents by the individual respondents as officials for the purpose of s.793 of the Fair Work Act.

6. The structure of the pleading is important.  The applicant’s case depends upon a number of discrete events, each identified by reference to the date upon which the event is alleged to have occurred.  The Statement of Claim consists of the pleading of a number of allegations concerning a particular event, followed by, generally speaking, an allegation that the first and second respondents had engaged in certain conduct.  An example will illustrate the point.  After pleading the facts surrounding some events that allegedly occurred on 21 September, 2012, the pleading goes on:

   542. In the premises, on 21 September 2012, the First and Second Respondents, including through the Fifteenth Respondent, conducted themselves in a manner where they were knowingly concerned in, organised, advised, encouraged, incited, aided, abetted, induced, conspired, counselled and/or procured QCH Project Employees to take Industrial Action, including by:

   (a) blocking and/or being present in close proximity to the entries to the QCH Project so that access to the QCH Project by QCH Project Employees was impeded or hindered;

   (b) advising, encouraging and inciting QCH Project Employees to take Industrial Action, namely strike action; and/or

   (c) engaging in intimidatory and conduct

   543.  The 21 September 2012 Industrial Action pleaded in paragraph 542:

   (a) was in contravention of section 417 of the FW Act; and/or

   (b) was organised with intent to coerce the Applicant to exercise a workplace right in a particular way in contravention of section 343(1Xb) of the FW Act, namely to coerce the Applicant to enter into a union based enterprise agreement; and/or

   (c) was organised with intent to coerce QCH Project Employees to engage in industrial activity, namely industrial activity as defined in sections 347(c), (d) and (f)of the FW Act, in contravention of section 348 of the FW Act; and/or

   (d) was in contravention of section 421 of the FW Act; and/or

   (e) occurred in circumstances where the First, Second and Fifteenth Respondents were involved in the contraventions pleaded herein and are therefore taken by section 550 of the FW Act to have contravened each of sections 417(1), 421, 343 and/or 348 of the FW Act.

   544. The First and Second Respondents are, by section 793 of the FW Act and/or section 24 of the FW (RO) Act, liable for the contraventions pleaded in paragraph 543.

7. The above pattern is repeated in the pleading in relation to those parts of the pleading now under attack which rely upon s.793 of the Fair Work Act as the source of derivative liability. What is apparent is that the pleading in paragraph 544 is the pleading of a conclusion. The facts leading the Court to that conclusion are those pleaded in paragraph 542. Apparently, no complaint is made about paragraph 542. It is a pleading that the first and second respondents engaged in certain conduct. That is to say, it is not a pleading of derivative liability, but a pleading that the first and second respondents did certain things (perhaps in an impermissible way but no complaint is made about that) including through to the fifteenth respondent. The matters pleaded in that paragraph against the first and second respondents are, if established by the evidence and found by the Court, apt to lead to a conclusion that s.793 of the Fair Work Act has been engaged.

8. The above is but a single example of the structure of the statement of claim insofar as it relies upon s.793 of the Fair Work Act, but the pattern is repeated faithfully in respect of the paragraphs that are relevant to this application.

9. In my view, no basis has been demonstrated to strike out those parts of the pleading that rely upon s.793 of the Fair Work Act as the source of the union respondent’s derivative liability. The applicant’s pleading, particularised as it is, provides a sufficient foundation upon which it can be said that the case made against the respondents pursuant to s.793 of the Fair Work Act is revealed to them and about which there will be no surprise.

10. Similarly, those parts of the pleading that deal with the union respondents’ vicarious liability for the alleged nuisances follow a similar form.  The pleading of vicarious liability is the pleading of a conclusion.  The basis for drawing the conclusion is pleaded, in a way that attracts no criticism, earlier in the pleading.  To follow through the example I have given above, the statement of claim continues:

    545.  The conduct pleaded in paragraph 542(a) and/or 542(c) constituted an obstruction of the passage of persons onto the QCH Project to perform work.

    546. In the premises, such conduct constituted a public and/or private nuisance. The conduct pleaded in paragraph 542(a) and/or 542(c) was besetting conduct which constituted conduct which was a discouragement to attend the QCH Project to perform work.

    548. In the premises, such conduct constituted a public and/or private nuisance.

    549. In the premises, the First and Second Respondents are vicariously liable for the said nuisance

11. It will be recalled that the conduct pleaded in paragraphs 542(a) and 542(c) is conduct pleaded to have been engaged in directly by the first and second respondents, including through to the fifteenth respondent.  The pleading of vicarious liability seems unnecessary, although perhaps it is intended to pick up the acts done by the fifteenth respondent.  Notwithstanding that curiosity, the key allegations upon which the conclusion of vicarious liability will be asserted are those appearing earlier in the pleading and to which no objection is taken.

Conclusion

1. Save for those parts of the pleading relying upon s. 24 of the Fair Work (Registered Organisations) Act which ought to be struck out, the balance of the application concerning the pleading ought to be, and is, dismissed.

2. I make the orders set out at the commencement of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered 26 September 2013

Associate: 

Date:  26 September 2013