Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner - [2010] FCA 349

FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349

Citation: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOSEPH MCDONALD and MICHAEL BUCHAN v AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

File number: WAD 24 of 2010

Judge: GILMOUR J

Date of judgment: 13 April 2010

Catchwords: PRACTICE & PROCEDURE – appeal – application for extension of time and leave to appeal from interlocutory discretionary judgment – whether decision attended with sufficient doubt – whether substantial injustice if leave were refused – no substantive right determined – no prospects of success – application dismissed.

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 36(1)(g)(i), 38, 39(1), 49(1)(c)
Trustee Act 1925 (NSW) s 69

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092
Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union(No 2) [2009] FCA 1587
Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
House v King (1936) 55 CLR 499
Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 702

Date of hearing: 9 March 2010

Place: Perth

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 32

Counsel for the Applicants: Ms K A Vernon

Solicitor for the Applicants: Slater & Gordon

Counsel for the Respondent: Mr K M Pettit (SC) with Mr S Harben

Solicitor for the Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 24 of 2010

BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Applicant

JOSEPH MCDONALD
Second Applicant

MICHAEL BUCHAN
Third Applicant

AND:
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

13 APRIL 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicants’ motion dated 8 February 2010 be dismissed.
2.The applicants pay the costs of the respondent to be taxed if not agreed.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 24 of 2010

BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Applicant

JOSEPH MCDONALD
Second Applicant

MICHAEL BUCHAN
Third Applicant

AND:
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Respondent

JUDGE:

GILMOUR J

DATE:

13 APRIL 2010

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicants on the motion (the CFMEU parties) by para 1 seek an order extending the time within which they may file and serve a motion for leave to appeal from part of my judgment in WAD 106 of 2009. Judgment in that matter was given in two separate sets of reasons.
The proceedings arose from strike action taken by employees of several contractors on 5, 6, 8,…

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

AGLC: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349
Case: [2010] FCA 349
Decision Date

CaseChat Overview and Summary

The case before the Federal Court of Australia involved the Construction, Forestry, Mining and Energy Union (CFMEU), Joseph McDonald, and Michael Buchan (the CFMEU parties) against the Australian Building and Construction Commissioner (ABCC). The dispute arose from strike action taken by employees of contractors at a high-rise building site in Perth, controlled by Diploma Constructions (WA) Pty Ltd. The ABCC sought relief under the Building and Construction Industry Improvement Act 2005 (Cth), alleging breaches of the Act by the CFMEU parties. The CFMEU parties sought an extension of time and leave to appeal from an interlocutory discretionary judgment that granted an injunction restraining them from engaging in further unlawful industrial action.

The legal issues before the court were whether the decision attended with sufficient doubt to warrant reconsideration by an appellate court and whether substantial injustice would result if leave were refused. The court needed to determine if the CFMEU parties had provided a satisfactory explanation for the delay beyond the seven-day time limit and whether the application for leave to appeal had prospects of success. The court also needed to consider if the decision was attended with sufficient doubt and if refusing leave would result in substantial injustice.

The court held that the decision was not attended with sufficient doubt to warrant reconsideration by a Full Court. The court's characterization of the CFMEU parties' claims as spurious and its conclusion that their conduct was directed against Diploma, with the Site being incidental, were well-founded. The CFMEU parties had not demonstrated that the decision was wrong, and the proposed grounds of appeal did not challenge the key findings. The court found that the CFMEU parties had been enjoined from engaging in illegal conduct only, and any prejudice regarding costs could be revisited at a later stage. The court dismissed the motion for an extension of time and leave to appeal, with costs awarded to the ABCC.

Orders