Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd
[2013] FCA 1164
•30 October 2013
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd [2013] FCA 1164
Citation: Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd [2013] FCA 1164 Appeal from: Application for leave to appeal from: Abigroup Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2013] FCCA 1472 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v ABIGROUP CONTRACTORS PTY LTD File number: QUD 707 of 2013 Judge: LOGAN J Date of judgment: 30 October 2013 Catchwords: PRACTICE AND PROCEDURE – industrial law –application for leave to appeal from interlocutory judgment of Federal Circuit Court – consideration of principles in Décor Corporation Proprietary Limited v Dart industries Inc (1991) 33 FCR 397 – consideration of the adequacy or otherwise of a statement of claim in an industrial civil penalty proceeding Legislation: Fair Work Act 2009 (Cth) Cases cited: Abigroup Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2013] FCCA 1472 related
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 considered
Décor Corporation Pty Ltd v Dart industries Inc (1991) 33 FCR 397 applied
Niemann v Electronic Industries Ltd [1978] VR 431 considered
Re The Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318 consideredDate of hearing: 28 October 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr E White Solicitors for the Applicant: Hall Payne Counsel for the Respondent: Mr J Murdoch QC Solicitors for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 707 of 2013
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND: ABIGROUP CONTRACTORS PTY LTD
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
30 OCTOBER 2013
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 707 of 2013
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND: ABIGROUP CONTRACTORS PTY LTD
Respondent
JUDGE:
LOGAN J
DATE:
30 OCTOBER 2013
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application for leave to appeal from an interlocutory judgment in respect of a matter of practice and procedure, namely the adequacy or otherwise of a statement of claim in an industrial proceeding. In respect of such applications it is salutary to recall a statement made by Sir Frederick Jordan in Re The Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, which was expressly approved by Gibbs CJ and Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at page 177:
… I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
There is presently pending, in the Federal Circuit Court, a proceeding in which the respondent to the present application, Abigroup Contractors Pty Ltd (Abigroup), seeks declaratory, injunctive, penal and compensatory relief in respect of alleged contraventions of the Fair Work Act 2009 (Cth) (Fair Work Act) by three unions, a number of union officials and others. Noteworthy amongst the others, for reasons which will emerge shortly, is the fifteenth (15th) respondent in the Federal Circuit Court proceedings. The proceedings in the Federal Circuit Court touch on alleged conduct in respect of a large construction project, the Queensland Children’s Hospital construction project, at Vulture Street, South Brisbane, over a period between August and October 2012.
After a number of adjournments of dates fixed earlier for trial, the proceedings are presently listed for trial in the Federal Circuit Court in Brisbane in February 2014. Two weeks have been allocated by that court for the trial.
The parties endeavoured informally to resolve the question of the adequacy of the statement of the claim made by Abigroup against the unions and others in the Federal Circuit Court. In the result, at least in the view of the present applicants for leave, no satisfactory disclosure of the case sought to be made against them resulted from those informal endeavours. That led to an application before the Federal Circuit Court for the striking out of particular paragraphs of Abigroup’s amended statement of claim, dated 12 February 2013. That application succeeded only in part, see: Abigroup Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2013] FCCA 1472. To the extent that the interlocutory application before the Federal Circuit Court did not succeed, leave to appeal has been sought.
In the court below the learned Federal Circuit Judge, in resolving the interlocutory controversy, adopted the approach of considering, so far as presently material, the controversy by reference to exemplar paragraphs in the amended statement of claim. That same approach commended itself to each of the parties in the application for leave to appeal. It is for this reason convenient to set out paragraphs 542 through to and including 549 of the amended statement of claim:
542.In the premises, on 21 September 2012, the First and Second Respondents, including through the Fifteenth Respondent, conducted themselves in a manner where they were knowingly concerned in, organised, advised, encouraged, incited, aided, abetted, induced, conspired, counselled and/or procured QCH Project Employees to take Industrial Action, including by:
(a)blocking and/or being present in close proximity to the entries to the QCH Project so that access to the QCH Project by QCH Project Employees was impeded or hindered;
(b)advising, encouraging and inciting QCH Project Employees to take Industrial Action, namely strike action; and/or
(c) engaging in intimidatory and conduct.
543. The 21 September 2012 Industrial Action pleaded in paragraph 542:
(a) was in contravention of section 417 of the FW Act; and/or
(b)was organised with intent to coerce the Applicant to exercise a workplace right in a particular way in contravention of section 343(1Xb) of the FW Act, namely to coerce the Applicant to enter into a union based enterprise agreement; and/or
(c)was organised with intent to coerce QCH Project Employees to engage in industrial activity, namely industrial activity as defined in sections 347(c), (d) and (f)of the FW Act, in contravention of section 348 of the FW Act; and/or
(d) was in contravention of section 421 of the FW Act; and/or
(e)occurred in circumstances where the First, Second and Fifteenth Respondents were involved in the contraventions pleaded herein and are therefore taken by section 550 of the FW Act to have contravened each of sections 417(1), 421, 343 and/or 348 of the FW Act.
544.The First and Second Respondents are, by section 793 of the FW Act and/or section 24 of the FW (RO) Act, liable for the contraventions pleaded in paragraph 543.
545.The conduct pleaded in paragraph 542(a) and/or 542(c) constituted an obstruction of the passage of persons onto the QCH Project to perform work.
546.In the premises, such conduct constituted a public and/or private nuisance. The conduct pleaded in paragraph 542(a) and/or 542(c) was besetting conduct which constituted conduct which was a discouragement to attend the QCH Project to perform work.
548. In the premises, such conduct constituted a public and/or private nuisance.
549.In the premises, the First and Second Respondents are vicariously liable for the said nuisance.
The learned Federal Circuit Judge observed, at paragraph 10, of paragraph 544 of the amended statement of claim that it is “the pleading of a conclusion”. I agree. Within paragraph 544, reference is made to s 793 of the Fair Work Act. In that reference lies the clue to the complaint which was pressed before the Federal Circuit Court, and which is the subject of the application for leave to appeal.
Before turning to the detail of that complaint, something further needs to be said in relation to matters of principle in relation to applications for leave to appeal. In this regard, it was common ground that the questions which arise in such applications are to be resolved by the application of a test which involves consideration of whether the decision in the court below is attended with sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result were leave to appeal to be refused; see Décor Corporation Proprietary Limited v Dart industries Inc (1991) 33 FCR 397. As to that test, it must nonetheless be recalled that in Adam P Brown Male Fashions v Phillip Morris Inc, at 177, Gibbs CJ and Aickin, Wilson and Brennan JJ, having referred to Niemann v Electronic Industries Limited [1978] VR 431 at 440, an authority which was influential in the Full Court in Décor Corporation v Dart Industries, stated that they believed it to be:
...unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various.
What, then, are the circumstances of this case? In January this year, by a letter of 29 January 2013 sent by the solicitors for the applicants for leave to those acting for Abigroup, a request was made in these terms, materially:
We request that you amend your statement of claim and/or provide further and better particulars in relation to the above matters. In particular, we request that you do so in respect of the following:
…
2.Either plead or provide further and better particulars of all material facts by which the union respondents are said to be liable for conduct of individuals pursuant to:
(a) s 793 of the Fair Work Act 2009;
(b)s 24 of the Fair Work (Registered Organisations) Act 2009; and
(c) by way of vicarious liability
as alleged in paragraphs [which include paragraph 544].
…
5.Either plead or provide further and better particulars of the material facts by which it is alleged that the fourteenth, fifteenth and sixteenth respondents were, relevantly officers or agents of the first and/or second respondents as pleaded in paragraph 12, 13 and 14.
[Emphasis added].
Paragraph 13 of the amended statement of claim is in these terms:
The fifteenth respondent was at all material times:
(a) a former union organiser of the second respondent;
(b)an official of the First and/or Second Respondent within the meaning of that term in section 793 of the FW Act;
(c)an agent of the First and/or Second Respondent within the meaning of that term in section 24 of the FW (RO) Act.
Again, read in isolation, paragraph 13(b) of the amended statement of claim is open to the objection by the addition of the words “within the meaning of” that it alleges not a material allegation of fact, but really an allegation of law alone. The complaint made on behalf of the applicants for leave is that notwithstanding the furnishing of further and better particulars to which I shall shortly refer, they are left in a position whereby so far as any liability they may have via section 793 of the Fair Work Act is concerned or vicarious liability otherwise, they do not know the case to be made against them.
The proceeding includes a claim for the imposition of pecuniary penalties. It is therefore axiomatic that each person in jeopardy of the imposition of such penalties must be able to meet and therefore to know the case made against them. Had matters rested only on the form in which the amended statement of claim is cast, there would be much to be said in favour of the proposition that there is no adequate disclosure of the case to be made against the applicants for leave, so far as liability via s 793 of the Fair Work Act or vicarious liability is concerned. Matters, though, did not rest there.
Following a further letter of request of 22 April 2013 made of the solicitors for Abigroup, those solicitors came by a letter dated 3 May 2013 to provide further particulars. These supplemented particulars which had already been furnished by letter of 28 March 2013 in response to the request made by the letter of 29 January 2013. In the letter of 3 May 2013 at paragraph 51, and by reference inter alias to paragraph 544 of the amended statement of claim, it is stated that:
The applicant alleges that the union respondents are liable for the conduct of the individual respondents pursuant to:
(a)s 793 of the Fair Work Act 2009 (Cth) because the alleged was engaged in on behalf of the union respondents by:
(i)an officer (which includes a delegate or other representative), employee or agent (an official) of the union respondent within the scope of his actual or apparent authority; or
(ii)any person at the direction or with the consent or agreement (whether expressed or implied) of an official of the body, and the giving of the direction, consent or agreement was within the scope of the actual or apparent authority of the official;
such that the conduct alleged is taken to have been engaged in also by the union respondents.
Later in that same letter at paragraph 97, and in respect of paragraph 13 of the statement of claim, it is stated:
… the applicant alleges that the fifteenth respondent was an agent of the first and/or second respondent within the scope of his actual or apparent authority on the basis of the following facts: …
There then follows a detailed recitation of either a particular former status, association or behaviours by the fifteenth respondent.
The letter of 3 May 2013 does not add to this statement. The further allegation that the fifteenth respondent was an agent of the first and/or second respondent within the scope of his actual or apparent authority is only an inference necessarily to be drawn from the facts set out in paragraph 97, but on any fair reading of that paragraph, that is the sense of it.
The learned Federal Circuit judge had regard to both the amended statement of claim and the particulars furnished. His Honour observed at paragraph 12 that in his view:
… no basis has been demonstrated to strike out those parts of the pleading that rely upon s.793 of the Fair Work Act as the source of the union respondent’s derivative liability. The applicant’s pleading, particularised as it is, provides a sufficient foundation upon which it can be said that the case made against the respondents pursuant to s.793 of the Fair Work Act is revealed to them and about which there will be no surprise.
I agree. It is to be remembered that the responses made on behalf of Abigroup took a form which was contemplated, indeed invited, by the applicants for leave in their solicitor’s letter of 29 January 2013. It may very well be that, in the absence of the extending by invitation of the alternative of furnishing further particulars so-called, as opposed to insisting upon a pleading in strict conformity with the rules of court, that a different outcome may have obtained before the Federal Circuit Court. That is not though the way in which the parties chose to conduct the litigation. That in my view explains why his Honour took the course he did, of measuring the adequacy of the revealing of the case to be made against the applicants for leave to appeal, by reference not just to the amended statement of claim, but also by reference to the so-called further and better particulars.
This was a discretionary value judgement in respect of a matter of practice and procedure. The fundamental requirement in respect of the case before the Federal Circuit Court was that the respondents in that court be tried in a procedurally fair way. In my view, the orders made by the Federal Circuit Court, dismissing so much of the application in the court below as touched upon the adequacy of the revealing of the case to be made by reference to s 793 and vicarious liability did not lead to a position whereby the case to be made was not revealed. It necessarily follows from that conclusion that I am also of the view that no substantial injustice has been done by the orders made in the court below.
That is not to say that the amended statement of claim is an exemplar of conformity with the rules governing pleading, only that, in the circumstances obtaining in this particular case and having regard to the course adopted by the parties in endeavouring informally to resolve matters, there is no sufficient basis for the grant of leave to appeal disclosed.
Accordingly, the application is dismissed. No costs are sought in this matter.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 8 November 2013
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