FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 405
Citation: Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 405 Appeal from Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Limited & Anor[2013] FMCA 154
Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Limited & Anor(No 2) [2013] FCCA 215
Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v ANTHONY GITTANY File number(s): NSD 714 of 2013 Judge(s): BUCHANAN J Date of judgment: 30 April 2014 Catchwords: PRACTICE AND PROCEDURE – application for costs – appeal from judgment of the Federal Circuit Court of Australia – whether appeal instituted vexatiously or without reasonable cause – whether a party committed unreasonable act or omission causing other party to incur costs – application for costs dismissed Legislation: Fair Work Act 2009 (Cth), ss 494, 494(2)(a), 494(2)(a)(i), 501, 502, 502(1), 502(3), 570, 570(2)(a), 570(2)(b)
Occupational Health and Safety Act 2000 (NSW), s 77Cases cited: Betfair Pty Ltd v Racing New South Wales and Another (2010) 189 FCR 356
Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164
Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd & Anor [2013] FMCA 154
Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd & Anor (No.2) [2013] FCCA 215
R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470Date of hearing: Heard on the papers Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Appellant: Mr I Latham Solicitor for the Appellant: CFMEU, NSW Branch Counsel for the Respondent: Mr D Ash Solicitor for the Respondent: Joe Weller & Associates
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 714 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AppellantAND: ANTHONY GITTANY
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
30 APRIL 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The interlocutory application filed 11 March 2014 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
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 714 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AppellantAND: ANTHONY GITTANY
Respondent
JUDGE:
BUCHANAN J
DATE:
30 APRIL 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
Background
On 3 March 2014 (Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164 – corrigendum 12 March 2014) Cowdroy J dismissed an appeal by the appellant against two judgments of the Federal Circuit Court of Australia (“the FCCA”) (Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd & Anor [2013] FMCA 154; Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd & Anor (No.2) [2013] FCCA 215).…
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Details
- Case
- [2014] FCA 405
- Decision Date
CaseChat Overview and Summary
The Construction, Forestry, Mining and Energy Union sought costs following an appeal concerning a claim of contravention of s 502 of the Fair Work Act 2009 (Cth) and a challenge to a costs order made at first instance. The case was heard by Cowdroy J in the Federal Court of Australia, who dismissed the application for costs. The primary legal issues revolved around whether the appeal was instituted vexatiously or without reasonable cause, and whether the party seeking costs had committed an unreasonable act or omission that caused the other party to incur costs. The court examined the conduct of the parties in relation to the appeal and the application for costs, including whether the appeal was brought in good faith and whether there were any grounds for dismissing the application.
Cowdroy J concluded that the appeal was not instituted vexatiously or without reasonable cause. The court found that the CFMEU did not clearly identify which constitutional criterion under s 494(2) it sought to assert before the Federal Circuit Court of Australia (FCCA). Instead, the CFMEU made an unclear reference to s 42 of the Federal Circuit Court of Australia Act 1999 (Cth), which promotes expediency in proceedings. The court held that s 42 did not require the FCCA to consider the relevancy of each constitutional criterion under s 494(2) when the only criterion relied upon was that Hume Highway controlled or operated the premises. Therefore, the court found that the primary judge was correct to conclude that the constitutional nexus, as pleaded, did not exist to enliven a State or Territory OHS right in connection with the inspection of the concrete pump.
The court dismissed the interlocutory application for costs filed on 11 March 2014. The Federal Court Rules 2011, Rule 39.32, were referred to in the entry of orders.
Cowdroy J concluded that the appeal was not instituted vexatiously or without reasonable cause. The court found that the CFMEU did not clearly identify which constitutional criterion under s 494(2) it sought to assert before the Federal Circuit Court of Australia (FCCA). Instead, the CFMEU made an unclear reference to s 42 of the Federal Circuit Court of Australia Act 1999 (Cth), which promotes expediency in proceedings. The court held that s 42 did not require the FCCA to consider the relevancy of each constitutional criterion under s 494(2) when the only criterion relied upon was that Hume Highway controlled or operated the premises. Therefore, the court found that the primary judge was correct to conclude that the constitutional nexus, as pleaded, did not exist to enliven a State or Territory OHS right in connection with the inspection of the concrete pump.
The court dismissed the interlocutory application for costs filed on 11 March 2014. The Federal Court Rules 2011, Rule 39.32, were referred to in the entry of orders.
Orders
Orders of the court
1. The interlocutory application filed 11 March 2014 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Costs of the appeal are sought in relation to the part of the appeal concerning the claimed contravention of s 502 of the FW Act and the challenge on appeal to the costs order made at first instance. The facts The facts were summarised by Cowdroy J (at [4]-[6]) as follows: 4At about 8.00 am on 6 December 2011, whilst Hume Highway was undertaking construction work at a site known as 580 Hume Highway, Yagoona (‘the premises’), three state organisers of the NSW State Branch of the CFMEU, namely Brian Miller (‘Mr Miller’), Chikmann Koh (‘Mr Koh’) and Mansour Razaghi (‘Mr Razaghi’) (collectively referred to as ‘the CFMEU representatives’), entered upon the construction site for the purpose of investigating possible breaches of the Occupational Health and Safety Act 2000 (NSW) (‘the OHS Act’). 5There is no dispute that the CFMEU representatives were authorised representatives of the CFMEU, that each held the necessary entry and, by virtue of s 494 of the FW Act, that they were entitled to enter the premises. 6The CFMEU representatives were met on arrival at the premises by Mr Gittany and were permitted to carry out their inspection of the premises. After inspecting various areas, including an amenities room and a first aid area, the CFMEU representatives moved outside the premises to investigate a scaffold in an adjoining car park. A concrete pump associated with the building work was located in the car park. After at least one of the CFMEU representatives spoke to the operator, the pump was turned off and a proposed concrete pour was interrupted. Such conduct resulted in heated discussions between the CFMEU representatives and other workers on site as well as with Mr Gittany. Some violence followed, in consequence of which the police were notified. The police arrived approximately 15 to 30 minutes later and order was restored. In the intervening period, Mr Miller claimed that the CFMEU representatives were not permitted to re-enter the premises. The police remained for approximately 15 minutes and thereafter the CFMEU officials and a WorkCover inspector entered upon the premises unimpeded. The FCCA judgment At first instance in the FCCA it was held that the CFMEU had confined its claim under s 502 to reliance on s 494(2)(a) of the FW Act (set out above), namely that Hume Highway and Mr Gittany had intentionally obstructed or hindered a right of entry to premises controlled by a “constitutional corporation” – Hume Highway. There were found to be two aspects to the claim. The first aspect concerned a claimed right to inspect the concrete pump located in the car park. The second aspect concerned an asserted right to re-enter the premises controlled by Hume Highway. The FCCA concluded that the first aspect could not succeed because Hume Highway did not occupy or control the car park. The second aspect did not succeed because the CFMEU representatives had left the premises controlled by Hume Highway and had no automatic right to re-enter, in the view of the FCCA. The appeal judgment
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
At first instance in the FCCA it was held that the CFMEU had confined its claim under s 502 to reliance on s 494(2)(a) of the FW Act (set out above), namely that Hume Highway and Mr Gittany had intentionally obstructed or hindered a right of entry to premises controlled by a “constitutional corporation” – Hume Highway. There were found to be two aspects to the claim. The first aspect concerned a claimed right to inspect the concrete pump located in the car park. The second aspect concerned an asserted right to re-enter the premises controlled by Hume Highway. The FCCA concluded that the first aspect could not succeed because Hume Highway did not occupy or control the car park. The second aspect did not succeed because the CFMEU representatives had left the premises controlled by Hume Highway and had no automatic right to re-enter, in the view of the FCCA. The appeal judgment On appeal, Cowdroy J recorded (at [31]): 31The CFMEU in essence submitted that the first asserted right met the requisite constitutional criteria to be satisfied in s 494(2) of the FW Act by virtue of the breadth of the criteria contained in ss 494(2)(d)–(g): see [11] above. Mr Gittany argued that regardless of the breadth of the provisions in s 494(2), the primary judge correctly identified that the CFMEU only sought to rely on s 494(2)(a) before the FCCA, that being that the car park was occupied or otherwise controlled by a constitutional corporation. His Honour concluded (at [35]-[36]): 35As to the first asserted right, the points of claim relied upon by the CFMEU before the FCCA alleged that Hume Highway was a constitutional corporation, that Hume Highway controlled or occupied the premises, and that the hindrance to the CFMEU representatives occurred when they were entitled to enter the premises. Significantly, the particulars assert that the hindrance took place in the car park of the premises. On appeal, the CFMEU did not identify at which point it sought to assert before the FCCA that another constitutional criterion under s 494(2) was satisfied. Instead it obscurely referred in written submissions to s 42 of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCCA Act’), which provides that the FCCA ‘must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted’. 36The basis of reliance by the CFMEU upon s 42 of the FCCA Act is unclear. If it was to suggest that the primary judge should have considered the relevancy of each of the constitutional criteria under s 494(2), even though the only constitutional criterion relied upon before the FCCA was that Hume Highway controlled or operated the premises, then that submission must be rejected. The primary purpose of s 42 of the FCCA Act is to promote expediency in the resolution of matters before the FCCA: WZASQ v Minister for Immigration and Anor [2013] FCCA 1726 at [33]; Auguste v Nikolyn Pty Ltd and Anor [2013] FCCA 1630 at [16]. It does not impose an obligation on the FCCA to go behind the pleadings of an applicant. It does not diminish the need for an applicant to state the case that is to be relied upon. In these circumstances, the primary judge was correct to find that the constitutional nexus, as pleaded, did not exist so as to enliven a State or Territory OHS right in connection with the inspection of the concrete pump.
Ratio Decidendi
Legal Principle Established
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