Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

In the case of Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, the applicants, the Construction, Forestry, Mining and Energy Union (CFMEU) and Building Materials Australia (BMA), sought leave to file a further amended statement of claim against BHP Coal. The respondents opposed the application, arguing that the claims in the amended statement of claim were defective and should be struck out. The CFMEU's claims were based on the respondents' alleged adverse actions against the applicants, in violation of the Fair Work Act 2009 (Cth). The respondents argued that the amended statement of claim was conclusory, ambiguous, evasive, and likely to cause prejudice, and that the applicants had no reasonable prospect of success. The applicants sought leave to replead their claims, and the court had to decide whether the amended statement of claim was defective and whether the applicants should be granted leave to replead.

The court held that the amended statement of claim was defective in several respects. The court found that the claims in paragraphs 28B, 29, 30, 31, 32, 33, 33A, 34, 35, 38, 39, 40, 40A, 41, 42, 43, 44, and 45 were either conclusory or did not disclose any reasonable cause of action. The court found that the applicants had not pleaded any material facts to support their claims, and that the claims were ambiguous, evasive, and likely to cause prejudice to the respondents. The court held that the successful application to strike out paragraphs of the statement of claim did not necessarily mean that the applicants had no reasonable prospect of success. The court found that the applicants had a reasonable prospect of success on some of their claims, and that the application for summary judgment was therefore refused. The court also found that the criteria for ordering costs under section 570 of the Fair Work Act 2009 (Cth) were not satisfied, and that no costs order should be made.

The court granted leave to the applicants to file a further amended statement of claim by a specified date and set a further directions hearing. The court ordered that paragraphs 28B, 29, 30, 31, 32, 33, 33A, 34, 35, 38, 39, 40, 40A, 41, 42, 43, 44, and 45 of the amended statement of claim be struck out. The court noted that the applicants had leave to apply for an extension of time to file a further amended statement of claim if necessary. The court also noted that there would be liberty to apply on three days' written notice. The court's orders were made under rule 39.32 of the Federal Court Rules 2011 (Cth).