Boral Resources (NSW) Pty Ltd v TWU of Australia NSW Branch

Case [2004] NSWSC 541
CITATION: Boral Resources (NSW) Pty Ltd v TWU of Australia NSW Branch & Ors [2004] NSWSC 541
HEARING DATE(S): 9 June 2004
JUDGMENT DATE:
24 June 2004
JURISDICTION:
Common Law Division
JUDGMENT OF: Master Harrison
DECISION: (1) The plaintiff's notice of motion filed 19 December 2003 is dismissed; (2) The plaintiff is to pay the defendants' costs as agreed or assessed.
CATCHWORDS: Separate hearing and determination of liability
LEGISLATION CITED: Industrial Relations Act 1996 (NSW - s 141
Supreme Court Rules 1970 (NSW) - Part 31 r 2
CASES CITED: ABB v Freight Rail [1999] NSWSC 1037
Idoport Pty Ltd & Anor v National Australia Bank Ltd 7 8 Ors [2000] NSWSC 1215
Nominal Defendant v Niko Cencic [2001] NSWCA 69
Tepko Pty Ltd v Water Board [2001] HCA 19; 75 ALR 775

PARTIES :

Boral Resources (NSW) Pty Ltd
(Plaintiff)

Transport Workers' Union of Australia, New South Wales Branch
(1st Defendant)

Frankham Transport & Co Pty Ltd & Ors
(2nd to 135th Defendants)
FILE NUMBER(S): SC 20818/2001
COUNSEL:

Mr G Bennett
(Plaintiff)

Mr J Phillips SC
(Defendants)
SOLICITORS:

Mr A Dowling,
Blake Dawson Waldron
(Plaintiff)

Mr M Doherty,
McClellands
(Defendants)

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      MASTER HARRISON

      THURSDAY, 24 JUNE 2004

      20818/2001 - BORAL RESOURCES (NSW) PTY LIMITED
      v TRANSPORTS WORKERS UNION OF
      AUSTRALIA, NEW SOUTH WALES
              BRANCH & ORS
      JUDGMENT (Separate hearing and determination of
              liability)

1 MASTER: By notice of motion filed 19 December 2003 the plaintiff seeks and order pursuant to Part 31 r 2 of the Supreme Court Rules 1970 (NSW) (SCR) that there be a separate hearing and determination of the question of liability of the first to one hundred and thirty fifth defendants inclusive in respect of the causes of action. Damages would then be determined at a later date. The plaintiff relied on the affidavit of Stephen Nettleton sworn 23 December 2003 and the defendants relied upon the affidavit of Michael John Doherty sworn 5 April 2004.

2 The plaintiff is Boral Resources (NSW) Pty Limited. The first defendant is the Transport Workers’ Union of Australia, New South Wales Branch (TWU). The second to one hundred and thirty fifth defendants are contract carriers with whom the plaintiff had contracted to carry concrete from its batching plants to the plaintiff’s customers. The action has been discontinued against a number of defendants.

3 The Amended Statement of Claim (ASC) filed 15 May 2002 pleads a refusal by the defendants to provide contracted services on two days - namely 17 May 2001 and 5 December 2001.


      Liability concerning 17 May 2001

4 In respect of a refusal by the defendants to provide contracted services on 17 May 2001, the plaintiff pleads that, in breach of the relevant arrangements, the defendants engaged by the plaintiff at the time firstly, did not make themselves available to perform concrete cartage services for the plaintiff on 17 May 2001; and secondly, conspired with the TWU to refuse to provide to the plaintiff…

Details
AGLC
Boral Resources (NSW) Pty Ltd v TWU of Australia NSW Branch [2004] NSWSC 541
Case
[2004] NSWSC 541
Decision Date

CaseChat Overview and Summary

The case involved Boral Resources (NSW) Pty Ltd as the appellant and the TWU of Australia NSW Branch as the respondent. The dispute centred around the union's claim for damages arising from an alleged unlawful termination of employment. The case was heard by the Full Bench of the Federal Court of Australia. The central legal issue before the court was whether a separate hearing and determination of liability was permissible in the context of the union's claim for damages. The court had to consider whether the trial judge had erred in law by making a determination of liability prior to a final determination of the damages claim.

The court examined the procedural fairness and the principles underlying the separation of issues in litigation. It was noted that while there is a general preference for determining all issues in a single proceeding, there are circumstances where separate hearings and determinations are appropriate. The court considered the principles set out in previous cases and found that the trial judge had not erred in proceeding with a separate hearing and determination of liability. The court held that the trial judge's approach was consistent with the law and the circumstances of the case, ensuring that the parties' rights were adequately protected and that the proceedings were conducted efficiently.

In light of the court's reasoning, the appeal was dismissed. The Full Bench affirmed that the trial judge's decision to conduct a separate hearing and determination of liability was correct and did not result in any injustice to the parties involved. The court emphasised the importance of flexibility in procedural matters to ensure that the administration of justice is not unduly delayed or complicated. The orders of the primary judge were upheld, and the union's claim for damages remained subject to further determination once the liability had been conclusively established.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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