BGC Contracting Pty Ltd v The Construction Forestry Mining - [2004] FCA 569

FEDERAL COURT OF AUSTRALIA
BGC Contracting Pty Ltd v The Construction Forestry Mining
and Energy Union of Workers [2004] FCA 569
BGC CONTRACTING PTY LTD & ORS v THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS
W38 of 2004
CARR J
7 MAY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W38 OF 2004

BETWEEN:

BGC CONTRACTING PTY LTD
APPLICANT

AND:

SHAMROCK HOLDINGS PTY LTD
SECOND APPLICANT

SNC-LAVALIN (SA) INC
THIRD APPLICANT

THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS
RESPONDENT

JUDGE:

CARR J

DATE OF ORDER:

7 MAY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.Until the hearing of this application or until further order, the respondent, whether by its officers or authorised representatives, be restrained from exercising, or purporting to exercise any right of entry to the site known as the Ammonia Plant Construction Project on the Burrup Peninsula, Karratha, in the State of Western Australia for the purposes of holding discussions with employees of the first or second applicants or for the other purposes referred to in s 49I of the Industrial Relations Act 1979 (WA) in relation to those employees or their employment.

2.Until the hearing of this application or until further order, the respondent, whether by its officers or authorised representatives, be restrained from taking any further steps in proceedings number CR13 of 2004 in the Western Australian Industrial Relations Commission in relation to costs or otherwise.

3. The costs of the application for continuing interlocutory relief be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W38 OF 2004

BETWEEN:

BGC CONTRACTING PTY LTD
FIRST APPLICANT

SHAMROCK HOLDINGS PTY LTD
SECOND APPLICANT

SNC-LAVALIN (SA) INC
THIRD APPLICANT

AND:

THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS
RESPONDENT

JUDGE:

CARR J

DATE:

7 MAY 2004

PLACE:

PERTH

REASONS FOR JUDGMENT
INTRODUCTION

The matter before the Court is whether interim injunctions which I granted on 18 March 2004 should continue until trial of the application or further order. These reasons are intended to be read with ex tempore reasons in relation to the same matter given on 20 February 2004, BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 272 and 18 March 2004, BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 417. I shall not here recite the facts and procedural background contained in those reasons other than as follows.
On 20 February 2004, I refused the (then) first applicant’s application for interlocutory injunctive relief, but granted liberty to renew that application on two days written notice to the respondent. I did so principally because I thought that it would be in the interests of justice to allow the proceedings before the Western Australian Industrial Relations Commission (described in the earlier reasons) to proceed at least to the stage where it made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read BGC Contracting Pty Ltd v The Construction Forestry Mining and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] FCA 569
Decision Date: 7 MAY 2004

CaseChat Overview and Summary

BGC Contracting Pty Ltd and others sought an injunction against the Construction Forestry Mining and Energy Union, seeking to prevent the union from entering the Ammonia Plant Construction Project site to discuss employment matters with the applicants' employees. The dispute arose from a broader industrial action and legal proceedings, leading to the applicants' request for interim relief. The court had to determine whether to grant the injunction and whether the applicants had established a sufficient case to warrant such relief.

The legal issues involved interpreting the relevant sections of the Industrial Relations Act 1979 (WA) and assessing whether the applicants had demonstrated a real and imminent risk of harm if the union were allowed to proceed with its intended actions. The applicants argued that the union's actions constituted an unlawful interference with their business operations and an attempt to coerce employees into joining the union. The court considered the balance of convenience, the irreparable harm the applicants might suffer, and the strength of the applicants' case at the hearing.

The court found that the applicants had made out a strong prima facie case, showing a real risk of harm if the union's actions were not restrained. The court also considered the public interest in maintaining industrial peace and the need to protect the applicants' business operations. The balance of convenience favoured granting the injunction, as the potential harm to the applicants outweighed any harm to the union or its members. The court therefore granted the relief sought, pending the hearing of the substantive application.

The final orders included a restraint on the union from entering the site for specified purposes and from taking further steps in related proceedings until the hearing of the application or further order. The costs of the application for continuing interlocutory relief were reserved for determination at a later stage.

Orders

Orders of the court

1. Until the hearing of this application or until further order, the respondent, whether by its officers or authorised representatives, be restrained from exercising, or purporting to exercise any right of entry to the site known as the Ammonia Plant Construction Project on the Burrup Peninsula, Karratha, in the State of Western Australia for the purposes of holding discussions with employees of the first or second applicants or for the other purposes referred to in s 49I of the Industrial Relations Act 1979 (WA) in relation to those employees or their employment.

2. Until the hearing of this application or until further order, the respondent, whether by its officers or authorised representatives, be restrained from taking any further steps in proceedings number CR13 of 2004 in the Western Australian Industrial Relations Commission in relation to costs or otherwise.

3. The costs of the application for continuing interlocutory relief be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W38 OF 2004

BETWEEN:	BGC CONTRACTING PTY LTD APPLICANT
AND:	SHAMROCK HOLDINGS PTY LTD SECOND APPLICANT SNC-LAVALIN (SA) INC THIRD APPLICANT THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS RESPONDENT
JUDGE:	CARR J
DATE OF ORDER:	7 MAY 2004
WHERE MADE:	PERTH

JUDGE:	CARR J
DATE:	7 MAY 2004
PLACE:	PERTH