Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

[2017] FCCA 1731

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS [2017] FCCA 1731

Catchwords:
PRACTICE AND PROCEDURE – Application for leave to file second amended statement of claim – whether proposed amendments cure defects of paragraphs previously struck out – whether applicant should be permitted to add additional paragraphs given the stage at which the proceedings have reached – whether paragraphs alleging accessorial liability in current statement of claim should be struck out – amendments allowed in part and paragraphs struck out.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 343, 362, 540, 550
Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(c)

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Australian Building and Construction Commissioner v Parker [2017] FCA 564

Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd  [2016] FCA 615
Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322
Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118

Gloucester Shire Council v Fitch Ratings, Inc (No 2)[2017] FCA 248

Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
S v The Queen (1989) 168 CLR 266
Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098

Applicant: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

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

Third Respondent: BRIAN PARKER

Fourth Respondent: RITA MALLIA

Fifth Respondent: MICHAEL GREENFIELD

Sixth Respondent: DARREN GREENFIELD

Seventh Respondent: LUKE COLLIER

Eighth Respondent: TONY SLOANE

Ninth Respondent: ROBERT KERA

Tenth Respondent: SALVATORE MANNA

Thirteenth Respondent: FRANCIS O’GRADY

Fourteenth Respondent: MARTIN WYER

File Number: SYG 332 of 2016

Judgment of: Judge Manousaridis

Hearing date: 14 June 2017

Date of Last Submission: 14 June 2017

Delivered at: Sydney

Delivered on: 28 July 2017

REPRESENTATION

Counsel for the Applicant: Mr M White SC

Solicitors for the Applicant: Corrs Chambers Westgarth

Counsel for the First to Tenth and Fourteenth Respondents: Mr J Pearce

Solicitors for the First to Tenth and Fourteenth Respondents: Taylor & Scott Lawyers

Solicitors for the Thirteenth Respondent: Slater & Gordon

ORDERS

1. Pursuant to r.16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) order 1 of the orders made on 21 December 2016 be amended by including:

   (a)“100” after “77(a1)”;

   (b)“131” after “108(h)”;

   (c)“152” after “140(f)”; and

   (d)“160(h), 173” after “160(d)”.

2. The applicant have leave to file a second amended statement of claim in the form of the draft second amended statement of claim annexed to the affidavit of Ms R Nocka made on 5 April 2017 but omitting:

   (a)the proposed amendments contained in paragraphs 43, 108(c), 108(i), and 198A-198R of the draft second amended statement of claim; and

   (b)all other proposed amendments that are consequential to paragraphs 43, 108(c), 108(i), and 198A-198R of the draft second amended statement of claim.

3. The applicant file and serve the second amended statement of claim by 4 August 2017.

4. The costs of the application for leave to file the second amended statement of claim are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 332 of 2016

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

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

Second Respondent

BRIAN PARKER

Third Respondent

RITA MALLIA

Fourth Respondent

MICHAEL GREENFIELD

Fifth Respondent

DARREN GREENFIELD

Sixth Respondent

LUKE COLLIER

Seventh Respondent

TONY SLOANE

Eighth Respondent

ROBERT KERA

Ninth Respondent

SALVATORE MANNA

Tenth Respondent

FRANCIS O’GRADY

Thirteenth Respondent

MARTIN WYER

Fourteenth Respondent

REASONS FOR JUDGMENT

Introduction

1. As a consequence of reasons for judgment I published on 21 December 2016 (earlier reasons), I ordered that a number of paragraphs of the statement of claim filed on 7 June 2016 (current statement of claim) be struck out, and that the applicant have liberty to replead those paragraphs. The applicant (Commissioner) now applies for leave to file a second amended statement of claim in the form of the draft second amended statement of claim annexed to the affidavit of Ms R Nocka made on 5 April 2017 (SASOC).

2. In his written submissions dated 28 April 2017 counsel for the Commissioner divided the proposed amendments into two categories. The first are amendments that are intended to respond to my earlier reasons (responsive amendments); and the second are amendments that are not intended to respond to my earlier reasons (new amendments).

3. The first to tenth and fourteenth respondents oppose most of the proposed amendments that are not consequential on the orders I made on 21 December 2016. The thirteenth respondent, Mr O’Grady, opposes the amendments made to those proposed paragraphs in which allegations are made against him and which are not consequential on the orders I made on 21 December 2016. The respondents submit the responsive amendments do not cure the defects I identified in my earlier reasons or are subject to other defects. They also submit I should not permit the new amendments because the Commissioner has given no, or no valid, explanation why the matters raised by the new amendments were not pleaded in the original statement of claim.

4. In addition to objecting to the proposed amendments, the respondents submit I should revisit the conclusions I made in my earlier reasons not to strike out those paragraphs of the current statement of claim that allege accessorial liability. The respondents rely on Australian Building and Construction Commissioner v Parker[1] where Flick J struck out a paragraph alleging accessorial liability which the respondents submit is indistinguishable from the paragraphs of the current statement of claim alleging accessorial liability that I refused to strike out on 21 December 2016.

   [1] [2017] FCA 564

Principles

1. There is no dispute between the parties about the principles that govern the Commissioner’s application to amend the current statement of claim. The parties accepted that the following passage from the judgment of Wigney J in Gloucester Shire Council v Fitch Ratings, Inc (No 2) conveniently records the relevant principles:[2]

   [2] [2017] FCA 248 at [86]-[89]

   [86] There are limits to be placed upon re-pleading. An amendment application should not be approached on the basis that a party is entitled to raise an arguable claim subject to the payment of costs by way of compensation: [Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175] at 217 [111].  An order for costs may not always provide sufficient compensation and therefore achieve a just resolution.  Parties are also entitled to expect that litigation be resolved with reasonable despatch . . . .

   [87] In Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098 at [127], Gleeson J provided a useful summary of the types of matters that the Court should consider in exercising its discretion whether or not to grant leave to amend.

   The principles articulated by the High Court in Aon apply to matters in this court . . . . Relevant matters the court is to consider include:

   ŸThe nature and importance of the amendment to the party applying for it: Aon at [102];

   ŸThe extent of the delay and the costs associated with the amendment: Aon at [102];

   ŸThe prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

   ŸThe explanation for any delay in applying for that leave: Aon at [108]; and

   ŸThe parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

   ŸThe detriment to other litigants in the court: Aon at [93], [95] and [114] and Luck at [44]; and

   ŸPotential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30]

   [88] Gleeson J did not suggest that this list was exhaustive, or that each of the matters in the list would necessarily be material in every case.  At [128] her Honour noted that the weight to be given to these considerations, individually and in combination, and the outcome of the balancing process generally, may vary depending on the particular facts of the case.

   [89] The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].

The proposed amendments to which objection is taken

Paragraph 43

1. The Commissioner does not press the proposed amendment set out in paragraph 43 of SASOC.

Paragraph (iv) of the particulars to paragraph 76

1. The proposed amendments consist of the addition of “the” before the letters “CFMEU” and the addition of “s” to “Officer”. The respondents oppose these proposed amendments “unless an order for costs is made”. I will deal with the question of costs later in these reasons.

Subparagraph 77(a1)

1. The proposed amendment is as follows:

   Further, during 14 February 2015, CFMEU Officers, being Parker, Manna, Kera, D Greenfield, Mallia and Wyer, engaged in further action to prevent or obstruct the 14 February Work being performed including by:

   . . . .

   (a1)entering the Barangaroo Site and for the purpose of interfering attending with the site induction of the 14 February Subcontractor Employees’ in the Lend Lease office (which is a standard site induction carried out before carrying out work on the Barangaroo Site induction which is a requirement for carrying out work on the Barangaroo Site and intercepting the 14 February Subcontractor Employees after the induction and blocking or attempting to block their entry to the Barangaroo Site; their being present during the preparations for carrying out scheduled concrete pours;

2. This proposed amendment seeks to address the conclusion contained in paragraph 104 of my earlier reasons.[3]

   [3] Commissioner’s Submissions in Reply, [26]

3. The respondents object to this amendment for a number of reasons, including the submission that the words “intercepting”, “blocking or attempting to block” are conclusory words which, they submit, are based on underlying facts that have not been pleaded.[4] I disagree. In the context in which they are used, these words sufficiently convey to the respondents the allegations to which they are to respond. I propose, therefore, to permit the proposed amendment to subparagraph 77(a1) of the SASOC.

   [4] Outline Submissions for First to Tenth and Fourteenth Respondents, [16]

Subparagraph 77(c)

1. The proposed amendment is as follows:

   Further, during 14 February 2015, CFMEU Officers, being Parker, Manna, Kera, D Greenfield, Mallia and Wyer, engaged in further action to prevent or obstruct the 14 February Work being performed including by:

   . . . .

   (c)the conduct of Wyer in substance telling Mazzarolo of DMG that the Subcontractors should not perform work whilst the DMG Employees were on strike and threatening  DMG with further action, saying to Mazzarolo words to the effect “Let’s not be silly about this – you know what’s going to happen if we keep this up. There will be pressure on De Martin going forward if you keep up this stance in the future.”

2. This is a new amendment. The Commissioner says the proposed amendment is intended to provide further factual particulars of Mr Wyer’s conduct. The Commissioner submits the additional material “falls within the scope of facts supporting the cause of action and is in the nature of material that will be dealt with at trial”.[5]

   [5] Commissioner’s Submissions in Reply, [27]

3. The respondents oppose the proposed amendment because, they submit, the Commissioner ought to have included this material in the current statement of claim, and the Commissioner has not explained why that did not occur.[6] They further submit the Commissioner does not attempt to demonstrate the proposed amendment raises an arguable case, and he makes no offer as to costs. (As I have already noted, I will deal with the question of costs later in these reasons.)

   [6] Outline Submissions for First to Tenth and Fourteenth Respondents, [17]

4. The proposed amendment is reasonably capable of being characterised as evidence that supports the allegation already made in paragraph 77(c) of the SASOC. The proposed amendment may, however, be objected to on the ground that it states evidence rather than a material fact. I would not disallow the proposed amendment only because it may purport to state evidence. If allowed, the proposed amendment would give greater particularity to the allegations made in paragraph 77(c) of the SASOC, and would, thus, place Mr Wyer in a better position to answer the allegation made in that paragraph.

5. While it is true the Commissioner has given no reason why the proposed amendment had not been included in the current statement of claim, the proposed amendment constitutes a relatively small part of the SASOC, and there is no suggestion any prejudice will flow to the respondents if the proposed amendment is permitted. As I have already noted, the proposed amendment will be to the advantage of Mr Wyer. I also do not accept the proposed amendment raises no arguable case. The allegation, if accepted, is capable of proving the matter alleged in paragraph 77 of the SASOC.

6. I will allow, therefore, the proposed amendment to paragraph 77(c) of the SASOC.

Paragraphs (v), (vi) (vii), (viii), and (ix) of the particulars to paragraph 107

1. Paragraph 107 of the SASOC alleges that the CFMEU officers referred to in that paragraph arranged or assisted in arranging for themselves and a group of DMG employees to attend the Barangaroo site and position themselves to prevent trucks from accessing the Barangaroo site. The proposed amendments to the particulars are as follows:

   (v)The positioning of the groups of people at the Lime Street and Hickson Road entrances . . . including the CFMEU Officers, to enter the Barangaroo Site.

   (vi)On or about 8.14am, Parker, M D Greenfield, Mazzarolo and Paul Young, a solicitor representing DMG, had a conversation where Parker and M Greenfield stated that they intended the CFMEU and CFMEU NSW’s actions to cause economic harm and more than economic further harm to DMG, and that this would not end until DMG commenced negotiations with the CFMEU and CFMEU NSW on the CFMEU’s Proposed EA.

   (vii)Parker, O’Grady, Wyer, M Greenfield, D Greenfield, Kera, Collier and Mann participating in a group of CFMEU officials and DMG Employees positioning themselves to block the Lime Street entrance and preventing the entry of concrete pump trucks onto the Barangaroo Site;

   (viii)The O’Grady and Collier linked arms with other persons to block group blocked, and attempt attempted further blocking of, the path of trucks attempting to enter the Barangaroo Site;

   (vii)(ix) Mallia. M Greenfield and Collier participating in a group of CFMEU officials and DMG Employees positioning themselves to block the Hickson Road entrance to the Barangaroo Site and preventing the entry onot [sic] the site of concrete pump trucks.

2. The respondents oppose the proposed amendments because, they submit, the allegations are conclusory. They refer to paragraph (viii) having  “an extra problem” because it does not state where the actual conduct occurred. The respondents also submit the Commissioner ought to have included this material in the current statement of claim, and the Commissioner has not explained why that did not occur.[7] Finally, they submit the Commissioner does not attempt to demonstrate the proposed amendments raise an arguable case. Counsel for the Commissioner, on the other hand, submits the amendments present greater detail and thus, enable the respondents to know better the case they have to meet.[8]

   [7] Outline Submissions for First to Tenth and Fourteenth Respondents, [20]

   [8] Commissioner’s Submissions in Reply, [31]

3. I do not agree the proposed paragraphs are conclusory. They are sufficiently particular to enable the respondents to answer the allegations made in paragraph 107. Paragraph (viii) does not present any “extra problem”, because the paragraph is sufficiently particular about where it is alleged the alleged conduct took place. In any event, precisely where, at the relevant building site, the alleged conduct took place does not appear to be material.

4. Although the Commissioner has given no reason why the proposed amendment was not included in the current statement of claim, there is no suggestion any prejudice will flow to the respondents if the proposed amendments are allowed. On the contrary, if allowed, they will be of benefit to the respondents because they provide greater particularity. Further, I do not accept the proposed amendments raise no arguable case. The allegations contained in the proposed amendments, if accepted, are capable of proving the allegation made in paragraph 107.

5. I will allow, therefore, the proposed amendments to paragraph 107 of the SASOC.

Paragraphs 108(c), (f), (h), and (i)

1. The proposed amendments respond to my earlier reasons. The proposed amendments are as follows:

   Further, during 16 February 2015, CFMEU Officers being Parker, Kera, O’Grady, Collier, D Greenfield and M Greenfield, engaged in further action to prevent or obstruct the 16 February Work being performed including by:

   . . . .

   (c)the conduct of Collier in threatening and intimidating attempting to start a fight with a concrete truck pump driver;

   . . .

   (f)the conduct of persons within the group led by O’Grady and Collier in the Second Blockade shouting words “fucking scabs”, “filthy dogs” and “fuck off”

   . . .

   (h)the conduct of Collier in inciting the group to physically block the access of a truck in defiance of a request by Police to cease the blockade, by stating to the group “Stand on the road guys. There’s not enough police to take us all away.”; and

   (i)Parker and D Greenfield refusing to lift the blockade until DMG negotiated further on the CFMEU’s Proposed EA.

2. I propose not to allow the amendment to subparagraph 108(c) because the words “attempting to start a fight with a concrete pump driver” are conclusory.

3. The respondents object to the amendment contained in paragraph 108(f) of SASOC for a number of reasons, including the submission that the words “led by O’Grady and Collier” are conclusory words that must be based on underlying facts not otherwise alleged. I disagree. These words are sufficiently particular to permit the respondents to respond to the allegations made against them in that paragraph.  I propose to allow the amendment to paragraph 108(f).

4. The respondents object to the amendment to paragraph 108(h) of the SASOC because, among other things, the “allegation continues not to identify the underlying facts concerning what is described as “a request by Police””. I disagree. Read in the context of the proposed amendment the expression “a request by Police”, is sufficiently particular to enable the respondents to respond to paragraph 108. I propose, therefore, to allow the amendment in paragraph 108(h) of the SASOC.

5. The respondents object to the amendment contained in paragraph 108(i) for reasons that include the submission the allegation is conclusory without stating the underlying facts on which the Commissioner relies. I agree, and do not propose to allow the proposed amendment contained in paragraph 108(i) of the SASOC.

Paragraph 160(d)

1. The proposed amendments set out in paragraph 160(d) of the SASOC are as follows:

   From at or about 5.15am on 17 February 2015 and at times during that day, CFMEU Officers, being Kara, O’Grady, M Greenfield, Parker, Manna and Mallia engaged in action to prevent or obstruct the 17 February Work being performed including by:

   . . . .

   (d)the conduct of M Greenfield, Kera and Manna in interfering with the operation of the Zanet Pumping concrete pump on site and instructing Mr Zanat to remove the concrete pump from the Barangaroo Site, by:

   (i)M Greenfield and Manna instructing Mr Zanat to leave the Barangaroo Site:

   (ii)Manna pointing to out a gate at the Barangaroo Site which Mr Zanat subsequently used to remove the pump from the Barangaroo Site;

   (iii)Kera stating to Mr Trethewy of LendLease [sic] “There is an issue with the concrete pump.”; by raising false safety issues, requiring the pump to be inspected, and instructing Mr Zanat to remove the concrete pump from the site;

2. The respondents submit these responsive amendments do not address the reasons for which in my earlier reasons I ordered paragraph 160(d) be struck out. I accept this submission. The proposed amendments do not purport to provide facts that are capable of supporting the allegation made in paragraph 160(d) of the current statement of claim that a false safety issue was raised in relation to the concrete pump. The proposed amendment, however, raises a new allegation; namely, that “M Greenfield, Kera and Manna” interfered with the operation of the concrete pump by in effect instructing its removal from the site. That allegation is stated with sufficient particularity to enable the respondents to answer it.

3. The respondents submit “there [are] no facts at all underlying the allegation of interfering with the operation of the concrete pump”. I disagree. The proposed amendments state with sufficient particularity the facts on which the Commissioner proposes to rely for the allegation that the relevant CFMEU officers interfered with the concrete pump.

4. The respondents also submit that the proposed amendments to paragraph 160(d) of SASOC ought to have been included in the current statement of claim and that the Commissioner has not explained why he did not include the matters in the current statement of claim. That is true, but that, by itself, does not persuade me the amendment should not be allowed. The amendment forms a relatively small part of the SASOC, and there is no suggestion the Respondents will be prejudiced by my permitting the amendment.

5. I will allow the proposed amendment to paragraph 160(d) of the SASOC.

Paragraph 160(h)

1. The proposed amendment to paragraph 160(h) of the SASOC is as follows:

   From at or about 5.15am on February 2015 and at times during that day, CFMEU Officers, being Kara, O’Grady, M Greenfield, Parker, Manna and Mallia, engaged in action to prevent or obstruct the 17 February Work being performed including by:

   . . . .

   (h)The conduct of M Greenfield, Kera and Manna in raising several false issues in an attempt to prevent concrete placing which issues were found to be false issues by WorkCover officers attending the site that day.,

2. This proposed amendment does not respond to my earlier reasons because I did not order paragraph 160(h) be struck out. That was an oversight on my part. I had ordered paragraph 160(d) be struck out because the allegation of “false safety issues” was unsupported by underlying facts.[9] The proposed amendment to paragraph 160(h) does also does not identify the underlying facts and, for that reason, I will not allow the amendment.

   [9] Outline Submissions for First to Tenth and Fourteenth Respondents, [37]

3. Given on 21 December 2016 I ordered that paragraph 160(d) of the current statement of claim be struck out, it is appropriate I also order that paragraph 160(h) of the current statement of claim be struck out.

Paragraph 182

1. The proposed amendment to paragraph 182 of the SASOC is as follows:

   From sometime at or about 8.20am on 17 February 2015  Sloane, engaged in action to prevent or obstruct the 17 February Harold Park Work being performed including by:

   (a)Sloane raising safety issues in a safety committee meeting relating to the LongReach concrete pump which had the effect of stopping the work of the 17 February Harold Park Subcontractor Employees, which issues had not been raised before that day or thereafter and which were later that day inspected by WorkCover and found to be safe, by stating:

   (i)“The weight of the pump is an issue. It’s got roadworthy issues and is not suitable for pumping. Also, the WIC number is not appropriate for concrete pumping.”; and

   (ii)“There’s a lot more issues with this, but you need to clarify these two. We’ll go through the rest later.”

   Upon the concrete pump paperwork being inspected at about 2 pm by WorkCover were found not be issues which required the concrete pump not to be used.

   (b)Sloane requiring a safety walk to be conducted of the Harold Park Site and a Safety Committee meeting to convene at which the issues referred to above were raised, causing delay such that the concrete pour for the day had to be abandoned and the 17 February Harold Park Subcontractor Employees to leave the site.

   raising sham safety issues relating to the LongReach concrete pump, which issue had not been raised before that day or thereafter and which was later that day inspected by WorkCover and found to be safe; and

   (b)Sloane requiring a safety walk to be conducted of the Harold Park site and a Safety Committee meeting to convene at which the issues referred to above were raised, causing delay such that the concrete pour for the day had to be abandoned and the 17 February Harold Park Subcontractor Employees to leave the site. speaking to the 17 February Harold Park Subcontractor Employees and dissuading them from performing during a site safety walk which had the effect of delaying the performance of work at the Harold Park Site,

   (the Second Harold Park Action).

2. This proposed amendment purports to respond to my having struck out paragraph 182 of the current statement of claim.[10] As originally pleaded, paragraph 182 alleged Mr Sloane raised “sham safety issues”. The proposed amendment does not allege any sham. Rather, it alleges Mr Sloane raised issues in a safety committee meaning which WorkCover found not to be an issue and Mr Sloane required a safety walk to be conducted, which caused schedule delays.

   [10] Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322 at [165]

3. Counsel for the Commissioner submits proposed paragraph 182 of the SASOC answers the grounds on which I had struck out the former paragraph 182 of the current statement of claim. Counsel further submits the proposed paragraph 182 of the SASOC gives greater particulars of Mr Sloane’s conduct while avoiding the “ambiguity” of the terms “sham” and “dissuade”.[11] The respondents, on the other hand, submit that, given the allegation of “sham” has been removed, the conduct of Mr Sloane that is alleged in paragraph 182 of the SASOC is incapable of supporting the allegation made at the beginning of paragraph 182 that Mr Sloane engaged in action “to prevent or obstruct the 17 February Harold Park Work being performed”. I disagree.  On a fair reading of the proposed amendment, the words “to prevent or obstruct” carries with it the allegation of intention. The matters alleged against Mr Sloane in the proposed paragraph 182 are reasonably capable of supporting the allegation that Mr Sloane engaged in action to prevent or obstruct the work described in the paragraph.

   [11] Commissioner’s Submissions in Reply, [37]

4. I propose to allow the proposed amendment contained in paragraph 182 of the SASOC.

Paragraphs 198A-198R

1. These amendments have been proposed in response to my striking out paragraphs 199-209 of the current statement of claim.[12] The amendments consist of 18 paragraphs made against each of the respondents. Each paragraph follows the same pattern. As an example, I set out paragraph 198A which relates to Mr Parker:

   Further or iIn the alternative, in relation to Parker and the conduct alleged against him in paragraphs 76, 77, 107, 108, 139, 140 and 160, and his resultant liability for contraventions of s.340 and s.343 in paragraphs 80B, 80C, 80D, 95A, 96, 98A, 99, 111B, 111C, 111D, 126A, 127, 129A, 130, 142B, 142C, 151A, 151B, 162B, 162C, 171A and 172 (Parker Contravention Paragraphs), the Applicant also relies on all of Parker’s conduct so alleged together, to the extent so found by the Court, as constituting contraventions of s.340 and s.343 by Parker on the same bases set out in the Parker Contravention Paragraphs.

   [12] Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322 at [167]-[180]

2. In his written submissions, counsel for the Commissioner described the purpose of these amendments as including the following:[13]

   [To] plead out in relation to each individual respondent the alternative case that is relied on by the Commissioner that where the primary allegation for each contravention against them are not made out at trial due to some element of the contravention not being proved to the required standard for the relevant day, the Commissioner will rely on the evidence of that respondent’s conduct on other days on which they were involved in conduct.

   [13] Commissioner’s Submissions in Support of the Applications in a Case, [9(a)]

3. At the interlocutory hearing, counsel for the Commissioner said that the purpose of these amendments is to give the respondents notice that, at the final hearing, the Commissioner will rely on findings the Court may make about the conduct or state of mind of a particular natural respondent at a given day as evidence that the person engaged in similar conduct or had the same state of mind on a different day. Counsel for the Commissioner further informed me that these amendments are proposed as an extra precaution to prevent the respondents from submitting at the final hearing that they will be surprised by the Commissioner’s reliance on findings the Court may make about that person’s conduct or state of mind.

4. Although a prime function of a statement of claim is to give fair notice of the case the respondent has to meet, the matters of which notice must be given are material facts and the provisions of any act or regulation on which the applicant intends to rely. In many circumstances it is appropriate for a statement of claim to state the particular legal significance or consequences the applicant attaches to the material facts that are alleged in the statement of claim, because it adds to its notice function. Given, however, that a statement of claim must plead material facts, it would be inappropriate to permit in it statements which are intended to indicate the evidential use the applicant intends to make of the facts alleged in the statement of claim

5. In my opinion, the proposed amendments contained in paragraphs 198A-198R of the SASOC do not plead facts or any statute or conclusion of law based on the facts it alleges. Nor would they add to the clarity of the statement of claim if I were to permit the amendments. At most, the proposed paragraphs simply state that the Commissioner intends to rely on the facts alleged against each of the relevant respondents. I will not allow, therefore, paragraphs 198A-198R of the SASOC.

The accessorial liability pleadings – paragraphs 100, 131, 152, and 173

1. As I have already noted, in my earlier reasons I did not strike out the paragraphs of the current statement of claim that allege accessorial liability. After I published my earlier reasons, Flick J delivered reasons for judgment in Parker, in which his Honour struck out a paragraph in a statement of claim that alleged accessorial liability in terms the parties agree are substantially similar to the manner in which accessorial liability is pleaded in the current statement of claim. The respondents submit that Flick J’s decision and reasons in Parker compels me to strike out paragraphs 100, 131, 152, and 173 of the current statement of claim.

2. I begin by describing the structure of the accessorial liability allegations as pleaded in paragraphs 100, 131, 152, and 173 of the current statement of claim. In relation to each of the named officers of CFMEU, each paragraph repeats the terms of s.550 of the Fair Work Act 2009 (Cth) (FW Act) and then provides particulars. In paragraph 100 of the current statement of claim, for example, it is alleged as follows:

   Each of the CFMEU Officers, being Kera, Mallia, Manna, D Greenfield, Wyer and Parker, that were involved in the contraventions of ss340 and 343 of the FW Act by the other CFMEU Officers, within the meaning of s550 of the FW Act in that each:

   (a)aided, abetted, counselled or procured the contraventions; or e;

   (b)induced the contraventions, whether by threats or promises or otherwise; or

   (c)by act or omission, directly or indirectly, been knowingly concerned in or party to the contraventions; or

   (d)conspired with the other Respondents to effect the contraventions.

   There then follow four subparagraphs of particulars.

3. In Parker Flick J struck out a paragraph alleging accessorial liability which followed the same pattern as the allegations in paragraphs 100, 131, 152, and 173. One of the grounds on which the paragraph was sought to be struck out was that the pleading lacked precision “in the manner in which one or other of the individual Respondents was said to be an accessory”.[14] Flick J:

   a)noted[15] that the starting point was the observations of Gaudron and McHugh JJ in S v The Queen[16] that a person against whom a “quasi-criminal” contravention is alleged “should know what case he or she has to meet”[17];

   b)noted that a pleading alleging a person is an accessory to the contravention of a “civil penalty” provision by another person should separately allege: (i) knowledge on the part of the accessory of each and every element of the contravention; and, (ii) the identity of the other person who engaged in the contravening conduct; and, (iii) where the contravention is one involving an “intent” or “purpose”, it is also necessary to separately prove knowledge of that “intent” or “purpose”;[18] and

   c)found that the pleading that alleged accessorial liability in the case before his Honour did not satisfy these requirements because the pleading did not sufficiently identify: (i) which particular respondent was said to be the person who engaged in the contravening conduct and, in respect to that conduct, which particular respondent was said to be an accessory;[19] (ii) the “material facts founding a pleading that contends that the person who was said to be an accessory had “knowledge of the other” of the respondents;[20] and (iii) “the factual basis for the allegation that that Respondent  had knowledge of the “intent to coerce” or a factual allegation from which such knowledge could be inferred”.[21]

   [14] [2017] FCA 564 at [30]

   [15] [2017] FCA 564 at [31]

   [16] (1989) 168 CLR 266

   [17] (1989) 168 CLR 266 at page 285

   [18] [2017] FCA 564 at [36]

   [19] [2017] FCA 564 at [38]

   [20] [2017] FCA 564 at [38]

   [21] [2017] FCA 564 at [38]

4. Counsel for the Commissioner does not submit the pleading in Parker is materially different from paragraphs 100, 131, 152, and 173 of the current statement of claim. Nor does counsel submit I do not have power to strike out those paragraphs, given that, in my earlier reasons, I concluded the paragraphs should not be struck out. I have no doubt I have the power to do so. It is to be found in r.16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) which provides that the Court may vary or set aside an order if the order is interlocutory.

5. In my opinion, I am bound by the decision and reasoning of Flick J in Parker to vary the orders I made on 21 December 2016 to the extent I dismissed the application to strike out paragraphs 100, 131, 152, and 173 of the current statement of claim, and to strike out those paragraphs.

6. Counsel for the Commissioner indicated that if I were minded to strike out those paragraphs the Commissioner would seek an opportunity to replead those paragraphs. Whether or not the Commissioner will take any such application is a matter for him. There are two matters, however, the Commissioner may consider when determining whether to make any further application: first, the number of attempts, none entirely successful, that have already made to amend the statement of claim; and second, whether there would be any utility in alleging accessorial liability on the part of the respondents in circumstances where the Commissioner alleges that each of the respondents has contravened the FW Act as a principal.

7. I propose, therefore, to strike out paragraphs 100, 131, 152, and 173 of the current statement of claim.

Costs

1. Counsel for the first to tenth and fourteenth respondents submit I should make an order for costs that, at the very least includes an order that the Commissioner pay all costs thrown away by reason of the amendments. Counsel submits that, given the number of amendments that have been made to the current statement of claim, it is questionable whether the current statement of claim was based on “prudent, proper and reasonable enquiries”.[22] Counsel for the first to tenth and fourteenth respondents further submit the “proceedings have surely reached a point where the constant amendments by the applicant, who are [sic] a litigant of unlimited resources, is reaching a stage of financial oppression to the respondents”.[23] These submissions, and submissions to similar effect, were supported and made by counsel for Mr O’Grady.

   [22] Outline Submissions for First to Tenth and Fourteenth Respondents, [48], quoting Tracey J in Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd [2016] FCA 615.

   [23] Outline Submissions for First to Tenth and Fourteenth Respondents, [49]

2. There are a number of observations that may be made about the respondents’ submissions. First, while it is true there have been four versions of the statement of claim, there have been only two applications to amend the statement of claim. This, in large part, is the result of my having ordered on 21 December 2016 that a large number of paragraphs of the current statement of claim be struck out.

3. Second, as I noted in my earlier reasons, the statement of claim is premised on a relatively small set of alleged facts which have been pleaded with sufficient particularity that should leave the respondents in no doubt about the facts that are alleged against them, and the grounds on which the Commissioner relies for claiming that those facts, if proved, demonstrate the respondents contravened s.340, s.343, and s.362 of the FW Act. The four versions of the statement of claim have not altered in any substantial way this small set of alleged facts. It cannot, therefore, be said that the four versions of the statement of claim have reflected different cases. In large part, the proposed amendments relate to matters that could reasonably be characterised as matters of detail, and even peripheral to the central allegations of fact made in the statement of claim.

4. Third, the respondents ignore that many and perhaps a majority of the attacks they have made to the statement of claim have failed; and that those that have succeeded have left substantially unscathed the central allegations of fact on which the Commissioner relies for claiming the respondents have contravened s.340, s.343, and s.362 of the FW Act. The delays and additional costs that have attended the progress of this matter cannot, therefore, only be attributed to the conduct of the Commissioner and his predecessor. The delay and costs are also, in part, attributable to the respondents having unsuccessfully applied to strike out paragraphs of the statement of claim.

1. And this leads me to a set of observations concerning the grounds on which I may order costs. The power of this Court to make an order for costs in relation to matters arising under the FW Act is regulated by s.570 of the FW, which relevantly provides:

   (1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. 

   (2)The party may be ordered to pay the costs only if: 

   (a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or 

   (b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or 

   (c)the court is satisfied of both of the following: 

   (i)the party unreasonably refused to participate in a matter before the FWC; 

   (ii)the matter arose from the same facts as the proceedings.

2. There are two matters to note. First, the power relates to the Court ordering a party to “pay costs incurred by another party to the proceedings”. That implies that before the Court can make an order for costs under s.570 of the FW Act, the party seeking the order must identify the costs it incurred which it claims the other party should be ordered to pay. Second, where, as is the case before me, an application for costs is made pursuant to s.570(2)(b) of the FW Act, it is necessary for the party who seeks the order (claimant) to establish it was the other party’s (opponent’s) unreasonable act or omission that caused the claimant to incur the costs. In all but the simplest of cases, that will usually require the claimant to identify with some particularity:

   a)the relevant costs or classes of costs he or she claims were incurred;

   b)in relation to the costs or each class of costs the claimant incurred, the opponent’s acts or omissions the claimant contends caused the claimant to incur those costs; and

   c)the grounds on which the claimant relies for claiming the opponent’s acts or omissions were unreasonable and caused the claimant to incur his or her costs.

3. The respondents have not, at least not with any specificity, identified the costs the respondents claim they have incurred, or the acts or omissions of the Commissioner (and his predecessor in title) which they allege were unreasonable, or the grounds on which it is alleged those acts or omissions were unreasonable, or the grounds on which it is alleged such acts or omissions caused the respondents to incur the costs they claim the Commission should be ordered to pay (relevant matters). For these reasons, it is not possible to consider the application for an order for costs.

4. It is true the respondents claim that, at the very least, the Court should order the Commissioner pay the costs thrown away by reason of any amendments. Given the respondents have not identified with any specificity the relevant matters, however, it would not be appropriate to make such an order. First, I am doubtful that an order for costs can be made under s.570 of the FW Act without the Court being satisfied the relevant matters exist. Second, even if the Court does have power to make an order for costs under s.570 without being satisfied the relevant matters exist, it would be inappropriate to make an order in the circumstances of this case because there would be a substantial risk that disputes will arise about whether the relevant matters exist or about the extent to which the relevant matters exist, and it would be inappropriate for such disputes to be resolved in the course of a taxation of costs.

1. For these reasons, I propose to order that the costs of this application be reserved.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 28 July 2017