Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2)
[2015] FCA 592
•14 May 2015
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCA 592
Citation: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCA 592 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP COAL PTY LTD File number: QUD 657 of 2014 Judge: LOGAN J Date of judgment: 14 May 2015 Catchwords: PRACTICE AND PROCEDURE – pleadings – strike-out application – where proposed amended statement of claim struck out whole of existing pleading and set out fresh pleading – whether claims properly pleaded in proposed amended statement of claim – proposed amended statement of claim mixed evidence and allegations of fact with respect to contraventions – need for precision of pleading in penal proceeding – applicant to file fresh statement of claim
INDUSTRIAL LAW – proceedings for a civil penalty – failure by applicant to plead facts alleging contravention of s 50 of the Fair Work Act 2009 (Cth)
Legislation: Fair Work Act 2009 (Cth) ss 50, 551
Federal Court Rules 2011 (Cth) r 1602, r 16.21, r 16.59Cases cited: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431 cited
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 applied
Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 ACSR 481 applied
Forrest v Australian Securities and Investment Commission (2012) 247 CLR 486 citedDate of hearing: 14 May 2015 Place: Brisbane Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: Mr B Docking Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr I Neil SC with Mr A Duffy Solicitor for the Respondent: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 657 of 2014
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND: BHP COAL PTY LTD
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
14 MAY 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The statement of claim filed by the applicant on 23 February 2015 is struck out.
2.Leave to file the amended statement of claim, sought to be filed by the applicant on 28 April 2015, be refused.
3.The costs of and incidental to the interlocutory applications are reserved.
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
FAIR WORK DIVISION
QUD 657 of 2014
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND: BHP COAL PTY LTD
Respondent
JUDGE:
LOGAN J
DATE:
14 MAY 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BHP Coal Pty Ltd (BHP), is the respondent to proceedings which have been instituted by the Construction, Forestry, Mining and Energy Union (CFMEU), in which it is alleged that BHP has contravened clause 32 of the BMA Enterprise Agreement 2012, and thus contravened s 50 of the Fair Work Act 2009 (Cth) (Fair Work Act).
An application for interlocutory injunctive relief in the proceedings was heard and dismissed on 12 December 2014: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431. Also at that time directions were made in respect of the conduct of the substantive proceeding by which civil penalties were sought by the CFMEU.
Materially, those directions contemplated the filing and service of a statement of claim in February 2015. A statement of claim was filed that month, albeit late. Thereafter, correspondence ensued between BHP’s legal representatives and those of the CFMEU. The upshot of that was, consensually, a variation of directions earlier made, and provision for the filing and service last month, by 24 April 2015, of an amended statement of claim.
No such document was filed by that date. There was a version of an amended statement of claim, which did not contain any portion struck out of the earlier filed statement of claim, sent to BHP’s solicitors on, lamentably, Anzac Day. Thereafter, a version which incorporated the text of the document sent on Anzac Day, together with the striking out of the portions of the earlier statement of claim, was sought to be filed on 28 April 2015. Given that the attempted filing occurred after the date provided for by Court direction, that filing was not permitted. A version of that same document was also provided to BHP’s solicitors on 30 April 2015.
BHP has brought an interlocutory application by which it seeks:
(1)under rule 16.21 of the Federal Circuit Court Rules 2011, that the statement of claim filed on 23 February 2015 be struck out;
(2)that the CFMEU not be given leave to file the amended statement of claim; and
(3)in the alternative to paragraph (2), if that amended statement of claim had been filed, that it too be struck out pursuant to rule 16.21.
Consequential orders and directions are also sought, together with costs.
In response and by way of oral application made today, the CFMEU seeks leave to file and serve the amended statement of claim. In the proposed amended statement of claim, ie, that which was finally delivered on 30 April, and which was sought to be filed on 28 April, the whole of the originally pleaded statement of claim has been struck out. In lieu thereof, a fresh pleading is then set out.
Against that background the CFMEU’s application might more aptly be regarded as an application for leave to deliver a fresh, rather than an amended, statement of claim. In other words, the nature of the striking out in the proposed amended statement of claim in effect is a concession that the whole of the earlier pleading should go.
The substantive question today, therefore, is whether the proposed amended statement of claim should be permitted to be filed, at least as a document which is, in effect, a fresh statement of claim, or whether it has so many defects that it ought not be permitted to be filed at all.
BHP did not submit that a consequence of a refusal of the CFMEU’s application or the granting of its application should be that the originating application ought also to be struck out. That particular stance was, in my view, appropriate, particularly given there has been no adjudication on the merits and the limitation period within which fresh proceedings could be brought has not expired. BHP accepted that, even if it enjoyed success in respect of its interlocutory application, some further time, albeit abbreviated having regard to time earlier allowed, should be allowed to the CFMEU to file and serve a fresh statement of claim.
The relevant pleading rule is r 16.02 of the Federal Court Rules 2011 (Cth), which provides –
Content of pleadings -- general
(1) A pleading must:
(a)be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and
(b) be as brief as the nature of the case permits; and
(c) identify the issues that the party wants the Court to resolve; and(d)state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and
(e) state the provisions of any statute relied on; and
(f) state the specific relief sought or claimed.(2) A pleading must not:
(a) contain any scandalous material; or
(b) contain any frivolous or vexatious material; or
(c) be evasive or ambiguous; or(d)be likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) otherwise be an abuse of the process of the Court.
(3) A pleading may raise a point of law.
(4)A party is not entitled to seek any additional relief to the relief that is claimed in the originating application.
(5)A party may plead a fact or matter that has occurred or arisen since the proceeding started.
Also relevant is rule 16.21:
Application to strike out pleadings
(1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or(d)is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2)A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1) (a), (b) or (c) or is otherwise an abuse of the process of the Court.
As to r 16.21, the allegation made by BHP is that the proposed amended pleading ought not be permitted, having regard to r 16.21(c), (d), or further or alternatively, (f). Also to be noted is the provision in r 16.59 in respect of the procedure for the making of an amendment to a pleading.
Here, having regard to the proposed amended statement of claim, and though the marking up procedure envisaged by r 16.59 has been followed, the amendments are so pervasive as to amount, in effect, to an abandonment of the earlier statement of claim, rather than an amendment of that document. In my view, it necessarily follows that the statement of claim filed in February 2015 ought to be struck out.
The real question is what should be the fate of the amended statement of claim?
As to that, guidance is offered by observations made earlier this year by the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 (CFMEU v BHP). Those observations were made by reference to this Court’s former rules, in particular, O 11, and, even more particularly, O 11 r 2(a). There is, though, no material difference between the pleading rules found in O 11 and those presently found in r 16.02. In the present case, as in that, the effect of s 551 of the Fair Work Act is that the CFMEU is obliged to comply with this Court’s pleading rules. Against that background, the Full Court made the following statements in CFMEU v BHP at [56] to [65]:
56Order 11 r 2(a) stated that a pleading “shall contain, and contain only, a statement in a summary form of the material facts on which [the party] relies, but not the evidence by which those facts are to be proved”. That prescription took up for this Court a longstanding requirement here and in the United Kingdom. It is repeated in the current rules of court but with the additional requirement that a party must state in a pleading such material facts as are necessary “to give the opposing party fair notice of the case to be made against that party at trial”: r 16.02(1)(d), Federal Court Rules 2011 (Cth). This addition made explicit what was always implicit in the earlier rules because of the Court’s obligation to afford parties procedural fairness. After they came into force, it was the new rules which governed any further steps in the present proceeding.
57In relation to civil remedy proceedings, the FW Act does not contain a provision like s 251 of the Customs Act 1901 (Cth), which states:
No objection for informality
No objection shall be taken or allowed to any information, summons or other originating process for any alleged defect therein in substance or in form or for any variance between such information, summons or other originating process and the evidence adduced at the hearing in support thereof, and the Court shall at all times make any amendment necessary to determine the real question in dispute or which may appear desirable, and if any such defect or variance shall appear to the Court to be such that the defendant has been thereby deceived or misled it shall be lawful for the Court upon such terms as it may think just to adjourn the hearing of the case to some future day.58In practice, however, the absence of such a provision may be one of form rather than substance.
59In Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 Isaacs and Rich JJ observed:
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
60These remarks were cited by the Full Court in Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [52] upon which BHP relied. Betfair’s case at trial was that the imposition by the respondent of a fee for using NSW race field information contravened s 92 of the Constitution, which provides for freedom of interstate trade, commerce and intercourse. The primary judge dismissed the proceeding, holding that the fee did discriminate against Betfair, but that Betfair had not made out a case that the fee was “protectionist” in character so as to engage the operation of s 92 of the Constitution. The Full Court agreed and dismissed the appeal. In the course of its reasons, however, it expressed its disagreement with the primary judge’s conclusion that Betfair’s case was fatally flawed by its failure to adequately plead that the discrimination it alleged was of a protectionist kind. The Full Court held otherwise, saying at [55] that the primary judge gave “insufficient recognition to the fact that the case was fought out in every other sense on the constitutional issues arising from s 92”. The Court continued:
Betfair’s opponents sought to rely at the trial on the general proposition that Betfair would be “held” to its pleaded case. An announcement of that kind by a party misstates that party’s capacity to direct the course of the proceedings. The course of proceedings is in the control of the Court. That control is to be exercised for the attainment of a just outcome. There will obviously be cases where a pleaded case does not raise an important fact for attention. If that remains the position at the end of the case, the case may be lost on that basis, so far as it depends on that fact. Sometimes it would be unfair to allow a party to amend a case, or a pleading, to raise a new matter which could have been, but was not, raised earlier. On the other hand, mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party.
61The Full Court emphasised the need to deal with the “real controversy” between the parties. At [59] the Court said that the question of protectionism was “clearly in play” and that any deficiency in the premise upon which the pleaded allegation of protectionism rested should have been dealt with as a matter of substance and not as a pleading point.
62We accept that these principles apply to civil remedy proceedings. A contravention of a civil remedy provision is not an offence (FW Act, s 549). In proceedings of this nature s 551 of the FW Act requires the Court to apply the rules of evidence and procedure for civil matters.
63Even so, a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. Furthermore, although the civil standard of proof applies, where (as here) the resolution of an issue exposes a respondent to a penalty, satisfaction on the balance of probabilities is not achieved by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Evidence Act 1995 (Cth) now requires that the court take into account the nature of the cause of action in deciding whether it is satisfied that a party’s case has been proved on the balance of probabilities: Evidence Act 1995 (Cth), s 140(2)(a) (“Evidence Act”).
64Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary.
65The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant’s pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant’s case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading. The obligations imposed on the Court and the parties by Pt VB of the FCA Act do not lead to any different conclusion.
As with that case, the present is also a penal proceeding. Of all classes of respondents to civil proceedings, a respondent in respect of a penal proceeding is certainly entitled to know, with precision, the contravention alleged. That is not to say, and r 16.02 expressly does not say, that such a respondent is entitled to know in the pleading the evidence which is to be led. The respondent is entitled to have the allegations of material facts set out in the statement of claim.
As a matter of general observation, it is a feature of the proposed amended statement of claim that it pervasively includes both allegations which can be regarded as allegations of material fact, for example, that there was a particular enterprise agreement as well as, and in a prolix way, numerous allegations which are nothing more than allegations as to evidence which would go to prove a particular material fact. This, in itself, makes the pleading an unacceptable one.
That is not to gainsay a sentiment voiced on behalf of the CFMEU that it wished to make it clear to BHP the case to be brought against it. The difficulty with that sentiment is that prolixity only makes for difficulty, both for a respondent and for the Court in assimilating what, precisely, is the alleged contravention. A summary of the evidence to be offered in a case is usually given at the opening. Alternatively, where provision is made by direction for evidence-in-chief to be by way of affidavit, the nature of the evidence to be led will become apparent in that way. Incorporating the same in a pleading is not acceptable, even in a summary form.
There were other criticisms made by BHP of the amended statement of claim. Those criticisms are by way of examples most usefully illustrated by reference to paragraph 222 of the amended statement of claim which appears under the heading “Peak Downs Mines Contraventions”. A similar manner of pleading is utilised in the amended statement of claim in respect of alleged contraventions arising at other mine sites. Paragraph 222 provides as follows:
222.The respondent contravened section 50 of the FW Act in respect of the Peak Downs Mine, in that the respondent before and on 23 September 2014 and continuing through until 4 December 2014 failed to comply with the respondent’s obligation in clause 32.1 of the Enterprise Agreement 2012 to consult about the possible need for redundancies of permanent Employees, the means of minimising the number of redundancies and/or the means of minimising the effect of the redundancies on Employees, due to one or any combination of four aspects:
a.By reason of any one or combination of paragraphs 65 – 72, 78, 81 – 82, 86, 88, 90, 95 – 97, 101, 105, 112, 115, 117, 119, 128, 165 – 168, 187, 199, 202, 208, 211, 216, 217 and 219 the respondent failed to and/or refused to consult about the respondent’s number of surplus permanent Employees with the Employee Representatives for the Mine and instead took the position that the number of surplus permanent Employees for the Mine that was identified by the respondent before consultation began was an irrevocable number or one on which it has come to a final conclusion before the consultation in clause 32.1 took place and that the respondent would proceed by way of voluntary redundancies, redeployment and/or forcible transfer.
b.By reason of any one or combination of paragraphs 65 – 72, 78, 81 – 82, 86, 88, 90, 95 – 97, 101, 105, 108, 112, 115, 117, 119, 128, 165, 199, 208, 211, 215, 216 and 219, the respondent failed to consult adequately or at all with the Employee Representatives for the Mine about displacing contract employees or labour hire employees, who are expressly excluded from the definition of Employee for the purposes of the enterprise agreement, as a specific means of minimising the number of permanent Employee redundancies or as a specific means of minimising the effect of redundancies on those Employees, with such redundancies including voluntary redundancies.
c.By reason of any one or combination of paragraphs 147 – 149, 150, 165 – 168, 187, 202, 208 and 214, the respondent failed to consult with the Employee Representatives for the Mine as it did not adequately or at all provide details of any changes in the performance of work, or changes in the allocation of work, to permanent enterprise agreement Employees, contractor and labour hire workers, including which roles and the number of roles that will be performed by each of those categories of workers for the enterprise agreement work shown in the Company’s “Future State” Organisational Charts emailed on Friday 31 October 2014.
d.By reason of any one or combination of paragraphs 52 – 64, 98, 113, 143 and 150, the respondent failed to consult with the Employee Representatives for the Mine as it did not adequately or at all provided the requested details for the Company’s “Future State” Organisational Charts emailed on Friday 31 October 2014, by providing a document in the format and with all of the tables of the “Mining – Fleet Coal” document that was provided by the respondent for the Saraji Mine redundancies as at 27 March 2014, including by providing figures for each proposed Crew broken up into equipment required, permanent enterprise agreement Employees, contractors that would remain in each crew and labour hire workers that would remain in each crew including for the proposed new way of planning and the Mine Services Model.
As can be seen, the preamble portion of paragraph 222 alleges a contravention of s 50, quote “due to one or any combination of four aspects”.
Where what amounts to a single contravention can be established in one or more different ways, there can be no objection, in terms of pleading, if a prosecutor is disposed to seek to prove the contravention in more than one way to a particularising under the allegation of the contravention of more than one means by which it is alleged the contravention is constituted. Even were the prosecutor, in those circumstances, to fail to prove one of the alleged means by which the contravention is said to have occurred but proved one or more others, the contravention would still have occurred: see, for example, Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 ACR 481 (Environment Protection Authority v Sydney Water Corporation).
Contrary to the submissions of the CFMEU, the attack made on, materially, paragraph 222 of the amended statement of claim by BHP is not at variance with the principle just mentioned. Rather, BHP’s criticism accepts that principle as a given. The criticism is, firstly, that when one looks, as each of the opening parts of the subparagraphs of paragraph 222 invite one to look, at “any one or combination of enumerated paragraphs”, one finds, in so doing, particular paragraphs which could not and do not amount, in themselves, to an allegation of a contravention. An example of this is to be found in paragraph 88 of the amended statement of claim. Even if, as fairly it would seem to me one ought, one reads paragraph 88, contrary to the invitation made in paragraph 222(b), with paragraph 87, the allegations one finds there could not amount to an allegation, read in conjunction with the opening part of paragraph 222, of facts materially sufficient to allege a contravention.
This is a vice which is repeated throughout paragraph 222: see, in that regard, paragraphs 95 to 97, 112, 115, 147 to and including 149, 150, 165 and 187 by way of further example.
There is a separate vice also present in paragraph 222 and its analogues in the amended statement of claim. That vice is the same (even allowing for a permissible further or in the alternative allegation) as described by the High Court in Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at [26] to [27]:
26Contrary to ASIC’s submissions in this Court, a case of fraud cannot properly be seen as a “fallback” claim to be made against the possibility that the party accused of engaging in misleading or deceptive conduct by publishing notices in relation to a financial product may seek to characterise them as statements of opinion, not fact. It is fundamental, and long established, that if a case of fraud is to be mounted, it should be pleaded specifically and with particularity. A pleading of fraud will necessarily focus attention upon what it was that the person making the statement intended to convey by its making. And the pleading must make plain that it is alleged that the person who made the statement knew it to be false or was careless as to its truth or falsity. If an alternative case of misleading or deceptive conduct is to be advanced, it is necessary to identify that claim as separate from the allegation of fraud. And for the purposes of the misleading or deceptive claim the pleader must identify what it is alleged that the impugned statements conveyed to their intended audience. Of course there may be circumstances in which it is appropriate to plead alternative cases of misleading or deceptive conduct or alternative cases of fraud and misleading or deceptive conduct. But it is greatly to be doubted that it will ever be appropriate to pile, one on top of the other, as many alternative allegations as were made in this case. Doing so risks contravention of what, in Gould v Mount Oxide Mines Ltd (In liq), Isaacs and Rich JJ said was “the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him” which requires that “pleadings should state with sufficient clearness the case of the party whose averments they are”.
27The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it. In this case, there were hundreds, if not thousands, of alternative and cumulative combinations of allegations. As Keane CJ observed in his judgment in the Full Court:
The presentation of a range of alternative arguments is not apt to aid comprehension or coherence of analysis and exposition; indeed, this approach may distract attention from the central issues.
Taking all of these particular deficiencies into account, the proposed amended statement of claim is not, in my view, a document which might be, in effect, resuscitated by way of further, fine-tuned amendments. Rather, what is needed, in the interests of justice, which at the very least include a trial conducted in a procedurally fair way in terms of BHP knowing the case it must meet by a document in conformity with the pleading rules, (and which is also readily to be able to be assimilated by the Court), is a fresh pleading.
In the course of submissions, I put to Mr Neil SC, who led Mr Duffy for BHP, that, were the preamble words of the particulars, which presently appear under, for example, paragraph 222 to be deleted, ie, if, for example, from paragraph A, the words, “By reason of” through to and including 219 were deleted, one might then see the requisite particulars to give precision to the allegation of material fact that there had been a failure to comply with section 50 constituted by a contravention of the consultation clause and the enterprise agreement.
This particular proposition, as I understood it, was conceded. In other words, it was no part of BHP’s interlocutory application that it had any entitlement to anything other than material allegations of fact, particularised as necessary in a way which gave colour and substance to a particular material allegation of fact. In this case, where the contravention centres around a failure, there is a need to identify what is said to constitute that alleged failure. Adopting the course which I have just described is a way in which BHP accepted this might be done.
The CFMEU has already had two opportunities to plead its statement of claim in a way which conforms with the rules. There does come a time when an absence of ability to plead a case, in conformity with the rules, bespeaks a case which ought, for that reason alone, to be dismissed. That time has not yet arrived. The CFMEU ought be given a further opportunity. That opportunity will take the form of a direction that it file and serve a fresh statement of claim.
It necessarily follows from that disposition that the existing statement of claim must be struck out and that leave to file the amended statement of claim should be refused.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 16 June 2015
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