Australian Building and Construction Commissioner v Abbott (No 3)

[2011] FCA 340

FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Abbott (No 3)
[2011] FCA 340

Citation:

Australian Building & Construction Commissioner v Abbott (No 3) [2011] FCA 340

Parties:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v BENJAMIN ABBOTT AND THE PARTIES IN ATTACHED SCHEDULE 1

File number:

WAD 230 of 2008

Judge:

GILMOUR J

Date of judgment:

8 April 2011

Catchwords:

INDUSTRIAL LAW – declaratory relief – orders on default – non-compliance with court orders – whether applicant is entitled to relief on the statement of claim

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 49(1)(a)
Workplace Relations Act 1996 (Cth) ss 494(1), 719
Federal Court Rules O 35A r 2(2)(b), (c)     

Cases cited:

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856
Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 244 ALR 300

Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem"(No 2) (2007) 240 ALR 120
British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as “Gory Sabar” [2007] FCA 1417

Deisel Spa v Hwang [2005] FCA 1619
Macquarie Bank Ltd v Seagle (2005) 146 FCR 400
Wu v Avin Operations Pty Ltd [2006] FCA 36

Date of hearing:

24 March 2011

Place:

Perth

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

19

Counsel for the Applicant:

Mr K M Pettit

Solicitor for the Applicant:

Clayton Utz

Counsel for the Respondents:

The Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2008

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant

AND:

BENJAMIN ABBOTT
First Respondent

THE PARTIES IN ATTACHED SCHEDULE 1
Third Respondent to Two Hundred & Twenty Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	24 MARCH 2011
WHERE MADE:	PERTH

1.Upon the admissions which the 19th, 110th, 113th, 195th and 201st respondents (Defaulting Respondents) are deemed to have made consequent upon their non-compliance with the orders of the Court and the Federal Court Rules

THE COURT DECLARES THAT:

(a)On 14 and 17-24 October 2008, each of the 19th, 110th, 113th and 195th respondents contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) by engaging in unlawful industrial action whilst being employed by CBI Constructors Pty Ltd (CBI) to construct the Phase V Expansion Project (Project) at the Burrup Peninsula (Industrial Action);

(b)on 14 and 17-23 October 2008, the 201st respondent contravened s 38 of the BCII Act by engaging in the Industrial Action;

(c)on 14 and 17-24 October 2008, the 19th respondent contravened s 494(1) of the Workplace Relations Act 1996 (Cth) (WR Act) by engaging in the Industrial Action prior to the nominal expiry date of the CBI Constructors Pty Ltd North West Shelf LNG Phase V Expansion Project (AMWU) Collective Agreement (AMWU Agreement) to which he was bound;

(d)on 14 and 17-24 October 2008, each of the 110th, 113th and 195th respondents contravened s 494(1) of the WR Act by engaging in the Industrial Action prior to the nominal expiry date of the CBI Constructors Pty Ltd North West Shelf LNG Phase V Expansion Project (CFMEU and AWU) Collective Agreement (CFMEU Agreement) to which they were bound;

(e)on 14 and 17-23 October 2008, the 201st respondent contravened s 494(1) of the WR Act by engaging in the Industrial Action prior to the nominal expiry date of the CFMEU Agreement to which he was bound;

(f)the 19th respondent contravened clauses 8(3), 9 and 39(14) of the AMWU Agreement by engaging in the Industrial Action; and

(g)each of the 110th, 113th, 195th and 201st respondents contravened clauses 8(3), 9 and 39(14) of the CFMEU Agreement by engaging in the Industrial Action.

AND THE COURT ORDERS THAT:

2.Determination of any pecuniary penalties which may be imposed upon the:

(a)Defaulting Respondents pursuant to s 49(1)(a) of the BCII Act for their contravention of s 38 of the BCII Act;

(b)19th respondent for his contravention of clauses 8(3), 9 and 39(14) of the AMWU Agreement, pursuant to s 719 of the WR Act; and

(c)110th, 113th, 195th and 201st respondents for their contravention of clauses 8(3), 9 and 39(14) of the CFMEU Agreement, pursuant to s 719 of the WR Act,

be adjourned to the penalty hearing of the proceeding on a date to be fixed (Penalty Hearing).

3.Liberty to the applicant to apply on such notice as a judge shall allow to discharge or vary the above Order.

4.Costs including costs of today be reserved to the penalty hearing.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2008

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant

AND:

BENJAMIN ABBOTT
First Respondent

THE PARTIES IN ATTACHED SCHEDULE 1
Third Respondent to Two Hundred & Twenty Second Respondent

JUDGE:	GILMOUR J
DATE:	8 APRIL 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. On 24 March 2011 I made declarations variously that the 19^th, 110^th, 113^th, 195^th and 201^st respondents (Defaulters) had contravened various provisions of the Building and Construction Industry Improvement Act (2005) (Cth), the Workplace Relations Act 1996 (Cth) as well as certain clauses of collective agreements.

2. I gave short oral reasons at that time for making those declarations.  I now set out those reasons which have been edited but not as to alter their substance.

3. There are five notices of motion seeking orders pursuant to Order 35A of the Federal Court Rules in respect of the 19th, 110th, 113th, 195th and 201st respondents (Defaulters).

4. The applicant relies on the following affidavits:

   (a)affidavit of Allen George Mitchell sworn 2 June 2010;

   (b)affidavit of Ian Douglas Fraser sworn 3 June 2010;

   (c)affidavit of Christopher Brandon Grice sworn 12 June 2010;

   (d)affidavit of Brett Roland Roberts sworn 3 June 2010;

   (e)affidavit of Brett Roland Roberts sworn 11 March 2011;

   (f)affidavit of Duncan Gilbert sworn 21 March 2011; and

   (g)affidavit of Anthony Gaskell sworn 22 March 2011.

   Service

5. In respect of the 19th respondent:

   (a)on 20 July 2010, the 19th respondent was served personally with the Originating Process in the proceeding;

   (b)the times for the 19th respondent to file a notice of appearance and defence have expired and the 19th respondent has failed to do either; and

   (c)on 17 March 2011, the 19th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011.  Service was effected by the documents being left at his Irving quarters at Gap Ridge Village, Madigan Road, Karratha.

6. In respect of the 110th respondent:

   (a)on 19 May 2010, the 110th respondent was served personally with the Originating Process in the proceeding;

   (b)the times for the 110th respondent to file a notice of appearance and defence have expired and the 110th respondent has failed to do either; and

   (c)on 15 March 2011, the 110th respondent was served personally with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011.

7. In respect of the 113th respondent:

   (a)on 28 May 2010, the 113th respondent was served personally with the Originating Process in the proceeding;

   (b)the times for the 113th respondent to file a notice of appearance and defence have expired and the 113th respondent has failed to do either; and

   (c)on 15 March 2011, the 113th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011, by leaving the documents with a female person at his last known address, that person having said she knew the 113th respondent.

8. In respect of the 195th respondent:

   (a)on 12 June 2010, the 195th respondent was served personally with the Originating Process in the proceeding;

   (b)the times for the 195th respondent to file a notice of appearance and defence have expired and the 195th respondent has failed to do either; and

   (c)on 15 March 2011, the 195th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011, by leaving the documents with a person, who was apparently over the age of 16 years, at his last known address, that person having said he knew the 195th respondent.

9. In respect of the 201st respondent:

   (a)on 24 March 2010, the 201st respondent was served personally with the Originating Process in the proceeding;

   (b)the time for the 201st respondent to file a notice of appearance and defence has expired and the 201st respondent has failed to do either; and

   (c)on 15 March 2011, the 201st respondent was served personally with the notice of motion for orders in default and supporting affidavit, together with a letter bringing notice of the proceeding that commenced on 21 March 2011 to his attention.

10. I am satisfied that there has been due notice of the documents set out above.  It seems that it was probably unnecessary to give notice of the notices of motion in the circumstances: British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665.

11. Order 35A rule 3(2)(c) FCR may be invoked upon an event of default of a kind prescribed in O 35A r 2(2) FCR, and contemplates that judgment may be given against a respondent for relief to which the applicant appears entitled "on the statement of claim" and which the Court is satisfied it has "power to grant".  In determining the relief, O 35A permits regard to be had to the "face of the statement of claim"; no evidence need be adduced to prove the factual contentions; allegations of fact in the statement of claim are deemed admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 244 ALR 300 at [42]. See also: Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57]; Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [6]-[7] per Jacobson J; Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J; Macquarie Bank Ltd v Seagle (2005) 146 FCR 400. The facts set out under paras 5(b), 6(b), 7(b) and 8(b) above constitute events of default pursuant to O 35A r 2 (2)(b) of the Federal Court Rules.

12. In this case, the judgment now sought is in respect of less causes of action than claimed under the Statement of Claim, and penalty is to be commensurate with penalty to be imposed on respondents who have the assistance of legal representation, and whose circumstances are otherwise indistinguishable.  Accordingly, no injustice will be occasioned by entering default judgment had the notices of motion not been served.

    Declaratory relief

13. The applicant also seeks declaratory relief as against the Defaulters based on deemed admissions of the facts pleaded in the Amended Statement of Claim.

14. In Dataline (2006) 236 ALR 665 at [57]-[59], Kiefel J observed:

    [57]… The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the Court on the facts and the declarations may give the impression that there has. 

    [58]The power to grant declarations (s 21 Federal Court Act 1976 (Cth)) sic is unconfined. Order 35A itself imposes no constraints upon the relief sought.  Refusals to make declarations in cases of default are based upon a practice, not a rule of law.  The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall.  Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2).

    [59]It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration … Cases such as this, involving the protection of consumers, are of public interest.  Declarations are often utilised in such cases to identify for the public what conduct constitutes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made.  This could be overcome by a statement, preceding the declarations, that orders are made ‘upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court’.  

15. Dataline (2006) 236 ALR 665 was followed by Mansfield J in Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) (2007) 240 ALR 120. His Honour noted the previous reluctance to base declarations on admissions, but nonetheless approved and adopted the reasons of Kiefel J in Dataline (2006) 236 ALR 665 and made declarations on the basis of deemed admissions.

16. In Hadgkiss v Aldin & Ors (No 2) at [23], I too granted declaratory relief "predicated by a statement that they are made on the basis of deemed admissions."

17. I am satisfied that there is a proper basis, in each case, for making the relevant declarations, and I will do so.

18. The issue of penalty in each case, if any, will be deferred until the penalty hearing in respect of those other respondents who have admitted liability.

19. I will also reserve the question of costs on the motions to that hearing.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        8 April 2011

SCHEDULE 1

MURRAY ARCARO
Third Respondent

MOSES ASIATA
Fourth Respondent

SERGIO BAEZ
Sixth Respondent

FRANCISCO BARRAZA
Ninth Respondent

ROLAND BAZAEZ
Twelfth Respondent

LEON BECKER
Thirteenth Respondent

PATRICK BIRD
Sixteenth Respondent

TERRANCE BISHOP
Seventeenth Respondent

ROMEO BONCATO
Nineteenth Respondent

DARREN BOXALL
Twentieth Respondent

ROBERT BROWN
Twenty-Fifth Respondent

SLAVO CEKLIC
Twenty-Eighth Respondent

KIM CHENNELL
Twenty-Ninth Respondent

JASON CHROMIAK
Thirty-First Respondent

ROBERT CLARK
Thirty-Second Respondent

DAVID COLLINS
Thirty-Fourth Respondent

DONALD COLYER
Thirty-Fifth Respondent

CHRIS CORRIGAN
Thirty-Seventh Respondent

ALLAN COUTTS
Thirty-Eighth Respondent

LANCE CRONIN
Thirty-Ninth Respondent

ANDREW CROSIER
Fortieth Respondent

RENEE CUMBERS
Forty-First Respondent

KENNETH CUMMING
Forty-Second Respondent

ALASTAIR CUNLIFFE
Forty-Third Respondent

AIDEN DAVEY
Forty-Fifth Respondent

SCOTT DEVINE
Forty-Ninth Respondent

CLAUDE DEVOS
Fiftieth Respondent

JOHN DICKSON
Fifty-First Respondent

NORMAN DODGIN
Fifty-Third Respondent

DANIEL DOYLE
Fifty-Fifth Respondent

MATT DRUMMOND
Fifty-Sixth Respondent

JOHANNES DUPLESSIS
Fifty-Ninth Respondent

WARWICK FAULKNER
Sixty-Fourth Respondent

VICTOR FAUSTINO
Sixty-Fifth Respondent

JOSE FERREIRA
Sixty-Seventh Respondent

GEORGE FITZROY
Seventy-First Respondent

DAVID FRASER
Seventy-Second Respondent

SALVATORE FRONTE
Seventy-Third Respondent

PETER GARDINER
Seventy-Fifth Respondent

LOUIE GEROVICH
Seventy-Eighth Respondent

SIMON GILBERT
Eighty-Second Respondent

TAY GOODALL
Eighty-Third Respondent

DUANE GUYATT
Eighty-Eighth Respondent

JOHN HARVEY
Ninetieth Respondent

QUINTON HEBBARD
Ninety-First Respondent

ROBERT HOLT
Ninety-Fourth Respondent

STEPHEN HONICKE
Ninety-Fifth Respondent

ANDREW HORNBY
Ninety-Sixth Respondent

CHRISTOPHER HOWARD
Ninety-Seventh Respondent

VINCENT HOWES
Ninety-Eighth Respondent

NIKOLA IVKOVIC
One Hundred and Third Respondent

DENIS JACKSON
One Hundred and Fourth Respondent

MARK JOHNSON
One Hundred and Sixth Respondent

RICHARD JONES
One Hundred and Seventh Respondent

RAYMOND JONES
One Hundred and Eighth Respondent

TURIPI KARUTJINDO
One Hundred and Tenth Respondent

EMIN KECAP
One Hundred and Eleventh Respondent

SHAUN KEILY
One Hundred and Twelfth Respondent

LENKO KORLJAN
One Hundred and Thirteenth Respondent

DARRIN LANE
One Hundred and Fifteenth Respondent

SHANE LAVELLE
One Hundred and Sixteenth Respondent

CHRISTINE LEAHY
One Hundred and Seventeenth Respondent

CHARLIE LINESS
One Hundred and Eighteenth Respondent

CLIFFORD LOGAN
One Hundred and Nineteenth Respondent

KENNETH LOGAN
One Hundred and Twentieth Respondent

DONALD MACKAY
One Hundred and Twenty-Third Respondent

JAMES MANN
One Hundred and Twenty-Fourth Respondent

DENIS MARRINER
One Hundred and Twenty-Sixth Respondent

GHEORGHE MATEIU
One Hundred and Twenty-Seventh Respondent

GREGORY MCCARTHY
One Hundred and Thirtieth Respondent

PAUL MCGEADY
One Hundred and Thirty-First Respondent

RUSSELL MCGHIE
One Hundred and Thirty-Second Respondent

JOSEPH MCGRANE
One Hundred and Thirty-Third Respondent

ALASTAIR MCGUIRE
One Hundred and Thirty-Fourth Respondent

ALAN MCKENZIE
One Hundred and Thirty-Fifth Respondent

DEAN MEDLAND
One Hundred and Thirty-Seventh Respondent

BRAD MILLER
One Hundred and Thirty-Eighth Respondent

ROBERT MITCHELL
One Hundred and Fourtieth Respondent

PASKO MITRESKI
One Hundred and Forty-First Respondent

CHRISTOPHER MOORE
One Hundred and Forty-Third Respondent

LEONARD MUDRI
One Hundred and Forty-Fourth Respondent

DARREN NEWBY
One Hundred and Forty-Sixth Respondent

JAMIE NICOLAOU
One Hundred and Forty-Seventh Respondent

JAMES ODIAM
One Hundred and Forty-Eighth Respondent

BRIAN OTTAWAY
One Hundred and Fifty-First Respondent

MANDY-LEE PALMER
One Hundred and Fifty-Second Respondent

KEN PAYNE
One Hundred and Fifty-Fifth Respondent

LOUISE PFITZNER
One Hundred and Fifty-Eighth Respondent

RICHARD PHILLIPS
One Hundred and Fifty-Ninth Respondent

SHEREE PIKE
One Hundred and Sixtieth Respondent

JOE PIZZO
One Hundred and Sixth-Second Respondent

JOHN PRATT
One Hundred and Sixty-Third Respondent

DAVID ROSSITER-MCLAREN
One Hundred and Seventieth Respondent

PHILLIP ROWELL
One Hundred and Seventy-First Respondent

TOM SABINE
One Hundred and Seventy-Third Respondent

MICHAEL SANDERS
One Hundred and Seventy-Fifth Respondent

ANTON SAXER
One Hundred and Seventy-Seventh Respondent

KEITH SHIELD
One Hundred and Eighty-First Respondent

DALE SHIRTLIFF
One Hundred and Eighty-Second Respondent

DUSKO SOBOT
One Hundred and Eighty-Fifth Respondent

GRAEME SOWDEN
One Hundred and Eighty-Seventh Respondent

BRAD SPARK
One Hundred and Eighty-Eighth Respondent

JUSTIN STUURSTRAAT
One Hundred and Ninety-Second Respondent

WAYNE SUTHERLAND
One Hundred and Ninety-Third Respondent

ALLAN TAMAPUA
One Hundred and Ninety-Fourth Respondent

KEN THACH
One Hundred and Ninety-Fifth Respondent

MICHAEL TICEHURST
One Hundred and Ninety-Sixth Respondent

NEIL TOLLISON
One Hundred and Ninety-Seventh Respondent

BRYAN TONKIN
One Hundred and Ninety-Eighth Respondent

JOHN TUIVASA
Two Hundredth Respondent

GREG UCHWAL
Two Hundred and First Respondent

PETER VARIAKOJIS
Two Hundred and Second Respondent

MAREE WAINMAN
Two Hundred and Third Respondent

MITCHELL WEIR
Two Hundred and Fourth Respondent

MICHAEL WRIGHT
Two Hundred and Sixth Respondent

LESLEY YOUNG
Two Hundred and Eighth Respondent

PERO ZUVELA
Two Hundred and Ninth Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
Two Hundred and Eighteenth Respondent

BRADLEY UPTON
Two Hundred and Nineteenth Respondent

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION
Two Hundred and Twentieth Respondent

JOHN WINDUS
Two Hundred and Twenty-First Respondent

ANDREW HOLDSWORTH
Two Hundred and Twenty-Second Respondent