Construction Forestry Mining and Energy Union of Australia v Alfred

[2003] FCA 1245

FEDERAL COURT OF AUSTRALIA

Construction Forestry Mining & Energy Union of Australia v Alfred
[2003] FCA 1245

CONSTRUCTION FORESTRY MINING AND ENERGY UNION OF AUSTRALIA & ORS v INSPECTOR GREGORY CHARLES ALFRED & ORS

N 1511 of 2003

LINDGREN J
21 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1511 OF 2003

BETWEEN:

CONSTRUCTION FORESTRY MINING AND
ENERGY UNION OF AUSTRALIA
FIRST APPLICANT

PETER ZABOYAK
SECOND APPLICANT

DAVID KELLY
THIRD APPLICANT

AND:

INSPECTOR GREGORY CHARLES ALFRED
FIRST RESPONDENT

WALTER CONSTRUCTION GROUP LIMITED
(ACN 008 390 074)
SECOND RESPONDENT

JOHN STORER
THIRD RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

21 OCTOBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The time within which application may be made for leave to appeal from the interlocutory orders of Gyles J made on 19 September 2003 in N 775/03 be extended until 7 October 2003.

2.The applicants have leave to appeal from those interlocutory orders, exercisable by the filing of a notice of appeal by tomorrow, 22 October 2003.

3.The costs of the present application be reserved to be determined in the appeal proceeding itself.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1511 OF 2003

BETWEEN:

CONSTRUCTION FORESTRY MINING AND
ENERGY UNION OF AUSTRALIA
FIRST APPLICANT

PETER ZABOYAK
SECOND APPLICANT

DAVID KELLY
THIRD APPLICANT

AND:

INSPECTOR GREGORY CHARLES ALFRED
FIRST RESPONDENT

WALTER CONSTRUCTION GROUP LIMITED
(ACN 008 390 074)
SECOND RESPONDENT

JOHN STORER
THIRD RESPONDENT

JUDGE:	LINDGREN J
DATE:	21 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants (respectively, “CFMEU”, “Zaboyak” and “Kelly”) seek ultimately leave to appeal from interlocutory orders. The orders were that motions brought by the applicants in their respective roles as third, fourth and fifth respondents in proceeding N 775 of 2003 be dismissed and that the costs of the motions be the applicants’ costs in the proceeding. In that proceeding the applicant is the present first respondent, Gregory Charles Alfred (“Inspector Alfred”), who claims to be an inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996 (Cth); the first respondent is the present second respondent, Walter Construction Group Ltd (“Walter”) and the second respondent is the present third respondent, John Storer (“Storer”), who is a construction manager employed by Walter.

2. In proceeding N 775 of 2003, relevantly, CFMEU, Zaboyak and Kelly moved for directions that they not be required to file defences on the ground that to do so might provide evidence able to be used to establish their liability to a civil penalty.

3. The order dismissing the motions was made on 19 September 2003.  The time for seeking leave to appeal was seven days from that date:  see Federal Court Rules O 52 r 10(2)(b).  The applicants commenced this proceeding on 7 October 2003 – 11 days after 26 September 2003, which was the last day for doing so within the seven-day period allowed.

4. The learned primary judge accepted that the motions raised a novel point, existing authorities, with the exception of Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 140 ALR 681, being concerned with the privilege against self-incrimination in the context of the interlocutory processes of discovery and interrogatories, rather than the filing of pleadings. His Honour distinguished the Bridal Fashions case.

5. Inspector Alfred “formally” opposes the grant of an extension of time, but accepts that he can point to no prejudice, other, of course, than the trouble and cost of having to respond to an appeal.  The solicitor appearing for Inspector Alfred makes no submissions against the granting of the relief sought.

6. Walter and Storer have taken no active part on the present applications.  Counsel appearing for CFMEU, Zaboyak and Kelly has informed the Court that Walter and Storer submit to such order as the Court may make.

7. The evidence shows that the legal representatives of CFMEU, Zaboyak and Kelly believed that the time allowed for the making of an application for leave to appeal was 14 days, rather than seven days, and also that there was some delay due to the absence of counsel from his chambers in Sydney.

8. I am satisfied that the lateness of the making of the application is explained, if not entirely satisfactorily, and that there is an arguable appeal point.  A draft notice of appeal is in evidence.

9. There are two notices of motion:  one seeking an extension of time for the making of the application for leave to appeal, and the other applying for the leave to appeal itself.  I will make both orders.  Accordingly, I will extend the time for making an application for leave to appeal to 7 October 2003, and I will grant leave to appeal provided the notice of appeal is filed by tomorrow.  I will reserve the costs of the applications to be determined in the appeal proceeding.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Acting Associate:

Dated:  13 November 2003

Counsel for the applicants:	Mr J H Pearce
Solicitor for the applicants:	Taylor & Scott
Solicitor for the first respondent:	Mr E Young of Phillips Fox
Date of Hearing:	21 October 2003
Date of Judgment:	21 October 2003