Abigroup Contractors Pty Ltd v Carnegie

Case [2013] FCCA 1099


FEDERAL CIRCUIT COURT OF AUSTRALIA

ABIGROUP CONTRACTORS PTY LTD v CARNEGIE [2013] FCCA 1099

Catchwords:
INDUSTRIAL LAW – Contempt of Court – alleged disobedience by failure to comply with injunctive order.

PRACTICE & PROCEDURE – Orders – construction and interpretation – question of ambiguity – appropriate process of correction in absence of ambiguity – slip rule.

PRACTICE & PROCEDURE – Contempt of Court – alleged disobedience by failure to comply with injunctive orders – failure to incorporate penal endorsement upon form of order – exercise of discretion to waive noncompliance – circumstances justifying exercise of discretion to waive compliance – defect in order by reference to non-existent instrument – fatal defect.

Legislation:

Federal Circuit Court Rules2001 (Cth), rr.1.06, 16.05, 19.02, 29.07, 29.08
Federal Court Rules 1979 (Cth), rr.2(3), 2(5)
Federal Court Rules 2011 (Cth), rr.41.06, 41.07, 41.08

Adams v Lambert [2006] HCA 10
Athens v Randwick City Council [2005] NSWCA 317
Australia Communication and Media Authority v Clarity 1 Pty Ltd [2008] FCA 130
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Australian Securities Commission v Macleod (No 1) [1993] 40 FCR 155
Clifford v Middleton [1974] VR 737
Colefax v Colefax [1933] St R Qd 222
Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67
Commissioner of Water Resources v Federated Engine Drivers’ and Fireman’s Association of Australasia Queensland Branch and Others [1988] 2 Qd R 385
Deputy Commissioner of Taxation v Hickey [1999] FCA 259
Deverall v Wannunup Development Nominees Pty Ltd (1994) 12 WAR 561

Doyle v Commonwealth (1985) 156 CLR 510

Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118
GDL Investments (Qld) Pty Ltd v Spotwire Pty Ltd [2003] QSC 273
Gordon v Gordon [1946] P 99
Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCAFC 149
Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87
Keith Harris & Co Ltd v Bryant (1980) 30 ALR 663
Livingspring Pty Ltd v Chris Haktoh Ng [2007] VSC 9
Madeira v Roggette Pty Ltd [1990] 2 Qd R 357
Mason v MWREDC Ltd [2012] FCR 1083
Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117
Miller v Eurovox Pty Ltd [2004] VSCA 211
Morgan v State of Victoria [2008] VSCA 267
R v Ayres (1984) AC 447
Re Bramblevale Ltd [1970] Ch 128

Re Honourable John Colinton Moore, the Minister of Business and Consumer Affairs v Tooheys Limited [1981] FCA 121

Ryan v Wright [2004] NSWSC 749
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Seaward v Paterson [1897] 1 Ch 545
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129
Sunibrite Products (Australia) Pty Ltd v Jabuna Pty Ltd (1980) 47 FLR 73
Tovehead Pty Ltd & Anor v Owston Nominees No 2 Pty Ltd & Anor [2002] NTSC 64
Tovehead Pty Ltd v Freeman [2003] NTCA 10
Universal Music Australia Pty Ltd v…

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Details
AGLC
ABIGROUP CONTRACTORS PTY LTD v CARNEGIE [2013] FCCA 1099
Case
[2013] FCCA 1099
Decision Date

CaseChat Overview and Summary

Abigroup Contractors Pty Ltd sought to have Carnegie found in contempt of court for alleged disobedience of an injunctive order. The dispute concerned whether Carnegie had failed to comply with the terms of that order. The matter came before Judge Burnett.

The court was required to determine whether Carnegie was in contempt of court. This involved interpreting the injunctive order and assessing whether Carnegie's actions constituted a breach. A key issue was the effect of a defect in the form of the order, specifically the failure to incorporate a penal endorsement and a reference to a non-existent instrument. The court also considered the appropriate process for correcting errors in orders, including the application of the slip rule, and the circumstances under which a court might waive non-compliance with formal requirements.

Judge Burnett found that the injunctive order contained a fatal defect due to its reference to a non-existent instrument. This defect rendered the order invalid and incapable of being enforced. Consequently, Carnegie could not be found in contempt for failing to comply with an invalid order. The court noted that while it had discretion to waive non-compliance with formal requirements, such as the absence of a penal endorsement, the fundamental defect in the order itself precluded a finding of contempt. The slip rule was not applicable as the defect was not a mere clerical error but a substantive flaw in the order's creation.

No specific orders were detailed in the provided text beyond the determination that contempt had not been established.

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

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Ratio Decidendi

Legal Principle Established

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