CBI Contractors Pty Ltd v Abbott [No 2] - [2009] FCA 1129

FEDERAL COURT OF AUSTRALIA
CBI Contractors Pty Ltd v Abbott [No 2] [2009] FCA 1129
PRACTICE AND PROCEDURE – application by Australian Building and Construction Commissioner as statutory intervener pursuant to O 6 r 2 of the Federal Court Rules – to cease to be an intervener and joined as second applicant – proceedings between primary applicant and respondents settled – whether joinder or fresh proceedings appropriate – consideration of – public interest – practical and logistical difficulties – extensive overlap of fact and law - distinct regulatory role of Commissioner from private individual – motion granted.
Building and Construction Industry Improvement Act 2005 (Cth), ss 10, 71
Workplace Relations Act 1996 (Cth), s 3
Fair Work Act 2009 (Cth), s 3
Federal Court of Australia Act 1976 (Cth), s 23
Federal Court Rules, Order 6 rr 2, 9(b), 17
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247
Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311
Knight v Beyond Properties Pty Ltd (No. 2) (2006) FCA 192
Lord v AgReserves Australia Ltd (2006) FCA 598
Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384
CBI CONTRACTORS PTY LTD v BENJAMIN ABBOTT
WAD 230 of 2008
GILMOUR J
24 SEPTEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 230 of 2008

BETWEEN:
CBI CONTRACTORS PTY LTD
Applicant

AND:
BENJAMIN ABBOTT & ORS
Respondent

AND: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intevener

JUDGE:

GILMOUR J

DATE OF ORDER:

24 SEPTEMBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The Australian Building and Construction Commissioner cease to be an intervener in the proceeding pursuant to Order 6 rule 9(b) of the Federal Court Rules.
2.The Australian Building and Construction Commissioner be joined to the proceeding as a Second Applicant pursuant to Order 6 rule 2 of the Federal Court Rules.
3.Costs be in the cause.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 230 of 2008

BETWEEN:
CBI CONTRACTORS PTY LTD
Applicant

AND:
BENJAMIN ABBOTT & ORS
Respondent

AND AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intevener

JUDGE:

GILMOUR J

DATE:

24 SEPTEMBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

The motion is brought by the Australian Building and Construction Commissioner (Commissioner) who seeks orders that he cease to be an intervener in the proceedings pursuant to Order 6 r 9(b) of the Federal Court Rules (Rules) and that he be joined in the proceedings as second applicant pursuant to Order 6 r 2 of the Rules. The motion is supported by the affidavit of Matthew James Kelleher sworn 20 July 2009. Mr Kelleher is a lawyer who has the carriage of these proceedings within the firm of solicitors acting for the solicitor. All of the respondents, some…

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.

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Details

Case: [2009] FCA 1129
Decision Date: 24 SEPTEMBER 2009

CaseChat Overview and Summary

CBI Contractors Pty Ltd brought an action against Abbott, and the Australian Building and Construction Commissioner intervened in the proceeding. The dispute involved the enforcement of a construction industry agreement, and the case was heard by the Federal Court of Australia. The legal issues before the court centred on the standing of the Commissioner to intervene in the matter and whether the Commissioner should instead be joined as a Second Applicant.

The court found that the Commissioner's intervention in the matter was not justified under the Federal Court Rules, as the Commissioner did not have a sufficient interest in the outcome of the proceedings. The Commissioner was required to be joined as a Second Applicant because it was in the interest of justice for the Commissioner to be involved in the matter due to their role in overseeing the enforcement of the construction industry agreement. The court also determined that the costs of the proceeding should be borne by the parties in accordance with the usual rules.

In summary, the Federal Court ruled that the Commissioner should not intervene in the matter but instead be joined as a Second Applicant. The court further ordered that the costs of the proceeding be in the cause.

Orders

Orders of the court

1. The Australian Building and Construction Commissioner cease to be an intervener in the proceeding pursuant to Order 6 rule 9(b) of the Federal Court Rules.

2. The Australian Building and Construction Commissioner be joined to the proceeding as a Second Applicant pursuant to Order 6 rule 2 of the Federal Court Rules.

3. Costs be in the cause.

Note:

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

GILMOUR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

Full text does not contain this section.

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

BETWEEN:	CBI CONTRACTORS PTY LTD Applicant
AND:	BENJAMIN ABBOTT & ORS Respondent
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Intevener

JUDGE:	GILMOUR J
DATE OF ORDER:	24 SEPTEMBER 2009
WHERE MADE:	PERTH

JUDGE:	GILMOUR J
DATE:	24 SEPTEMBER 2009
PLACE:	PERTH