Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Ltd and Anor (No.2)
[2013] FCCA 215
•10 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v HUME HIGHWAY CONSTRUCTIONS PTY LTD & ANOR (NO.2) | [2013] FCCA 215 |
| Catchwords: WORDS AND PHRASES – ‘without reasonable cause’. |
| Legislation: Fair Work Act 2009, ss.501, 502, 570 Federal Court of Australia Act 1976, s.31A Federal Circuit Court of Australia Act 1999, s.17A Migration Litigation Reform Act 2005 |
| Cases cited: Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd [2013] FMCA 154 Council of Kangan Batman Institute of Technology & Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 |
| Applicant: | CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
| First Respondent: | HUME HIGHWAY CONSTRUCTIONS PTY LTD (ACN 147 946 343) |
| Second Respondent: | ANTHONY JOHN GITTANY |
| File Number: | SYG 892 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | Matter decided without oral hearing |
| Date of Last Submission: | 29 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Latham |
| Solicitor for the Applicant: | Ms L Charlson, Construction, Forestry, Mining & Energy Union |
| Solicitors for the Respondents: | Joe Weller & Associates |
ORDERS
The applicant pay half of the respondents’ costs of the proceeding as agreed or, in default of agreement, as determined by or in accordance with further order of the Court.
The costs payable by the first respondent to the applicant by virtue of the order made on 19 October 2012 be set off against the costs payable by the applicant to the first respondent.
The costs payable by the second respondent to the applicant by virtue of the order made on 4 December 2012 be set off against the costs payable by the applicant to the second respondent.
In default of agreement on the quantum of costs payable, the parties have liberty to apply.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 892 of 2012
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
Applicant
And
| HUME HIGHWAY CONSTRUCTIONS PTY LTD (ACN 147 946 343) |
First Respondent
| ANTHONY JOHN GITTANY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding concerned allegations made by the applicant (“CFMEU”) that the respondents refused and/or unduly delayed the entry to a building site sought by three of its officials pursuant to their statutory rights of entry and that the respondents also intentionally hindered or obstructed those officials in the exercise of their rights to investigate health and safety concerns. On 5 April 2013 I dismissed the CFMEU’s application: Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd [2013] FMCA 154 (“primary judgment”), and the successful respondents thereafter sought costs.
The primary judgment sets out the facts necessary for an understanding of the following reasons.
For the reasons which follow, the CFMEU will be ordered to pay half of the respondents’ costs of the proceeding.
Relevant legislation
At the time this proceeding was commenced, s.570 of the Fair Work Act 2009 (“FWA”) relevantly provided:
570 Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
(2) The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; …
Submissions
The parties agreed that the application for costs should be determined on written submissions. Submissions of particular relevance are set out below.
Respondents’ submissions
The respondents submitted that the CFMEU had not sought to identify prior to the commencement of the proceeding:
a)who controlled the site where the first respondent (“Hume Highway Constructions”) was erecting a building (“Premises”);
b)what the relationship was between Hume Highway Constructions and the second respondent, Mr Gittany;
c)who employed the workers who were said to have acted in an intimidating fashion towards the CFMEU’s officials, if anyone did employ them;
d)who owned the concrete pump which had been intended to supply concrete to the building site and who employed its operator;
e)who owned the car park on which the concrete pump stood; and
f)whether the car park which was adjacent to the Premises was part of those Premises.
The respondents submitted that the CFMEU had brought the proceeding relying only on assumptions as to those important matters.
The respondents further submitted that if those matters had been addressed before the commencement of the proceeding:
a)Hume Highway Constructions would not have been named as a party;
b)an attempt to impute the acts of the workers to Mr Gittany would not have been made;
c)it would have been clear that the car park was not part of the Premises;
d)the events in the car park would not have been seen as elements of a contravention; and
e)Mr Gittany would not have been named as a party.
The respondents said that, in those circumstances, the CFMEU had not acted reasonably in bringing this proceeding and should therefore be ordered to pay their costs.
In their submissions in reply the respondents also said that:
… given the lack of credit of the applicant’s main witness, Mr Miller, the factual basis of the alleged narrative of the applicant, was to put it kindly, uncertain.
…
The respondents are entitled to costs not because the Court took a view of facts different to that of the applicant … but rather because there was no other view available, or, the applicant did not know what the facts were.
They went on to submit that the CFMEU should bear the costs consequences of having brought a proceeding based on the evidence of witnesses who did not enjoy the confidence of the Court and in respect of one of whom the Court had “made some very unflattering findings as to [his] evidence”.
Applicant’s submissions
Referring to Council of Kangan Batman Institute of Technology & Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at 289 [60], the CFMEU accepted that an order for costs would be justified if the proceeding had been instituted without real prospects of success or had been doomed to failure.
The CFMEU submitted that it did not act unreasonably in instituting this proceeding even though the facts it asserted were not those found by the Court. It also pointed to the fact that it had been successful on a number of points and that the positions on legal issues it advocated but on which it had not been successful had been arguable.
Consideration
“Reasonable cause” – relevant law
Kangan v AIRC, and the cases to which it relevantly referred, predated or were not concerned with the amendments to the Federal Court of Australia Act 1976 (s.31A) and the Federal Circuit Court of Australia Act 1999 (s.17A) effected by the Migration Litigation Reform Act 2005. They echoed the test for summary dismissal which existed before those amendments. As a result of those amendments, matters in this Court are liable to be dismissed summarily if they do not have reasonable prospects of success. A matter does not have to be “hopeless” or “bound to fail” to lack reasonable prospects of success. However, those provisions are not relevant to the question posed by the FWA concerning whether proceedings are brought without reasonable cause. In Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 at [30] it was held that:
… the test to be applied in relation to the expression “without reasonable cause” is similar to that adopted in an application for summary judgment, viz “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “discloses a case which the Court is satisfied cannot succeed”. I might add that these statements express the test for a summary judgment before the introduction of s 31A of the Federal Court of Australia Act 1976 (Cth). However, I consider they are apt under s 329 of the Act because s 31A of the Federal Court of Australia Act 1976 (Cth) uses the expression “no reasonable prospects of success”, rather than “no reasonable cause” and, more importantly, s 31A also contains an express statutory exclusion (not present in s 329) of the need to show the proceedings are hopeless or bound to fail. (references omitted)
“Reasonable cause” – this case
I accept that the CFMEU advocated positions on legal issues which were arguable but I also accept that the respondents accurately identified that the CFMEU’s case in relation to the alleged breach of s.502 of the FWA was based on factual assumptions which were not only not proved but which the CFMEU did not attempt to prove except by cross-examination, namely whether the respondents occupied or controlled the car park and whether the workers who were said to have confronted the CFMEU officials were employees of Hume Highway Constructions as alleged. I am satisfied that when the proceeding was initiated the CFMEU did not have a reasonable basis to allege that its officials were confronted by “employees of the First Respondent” while inspecting “the First Respondent’s concrete pump which was located in the car park of the premises” and that, in the absence of evidence on those points, that aspect of the proceeding was doomed to fail.
However, if I am incorrect in that conclusion, I also infer that the failure to put before the Court some evidence to substantiate those allegations indicated an absence of such evidence. I conclude that without any evidence to make it out, it was unreasonable of the CFMEU to persist with its allegation that the respondents breached s.502 of the FWA in respect of the actions of the workers or the inspection of the pump.
Nevertheless, the case was wider than those issues. In particular, Mr Gittany was alleged to have had personal responsibility for his own supposed participation in the alleged contraventions. Moreover, the question whether the CFMEU officials were wrongly frustrated in their wish to return to the Premises was unrelated to the occupation or control of the adjacent car park. Those matters indicate that there was at least some reasonable basis for the initiation of the proceeding, assuming that the CFMEU officials’ evidence was truthful.
A proceeding is not initiated without reasonable cause simply because a witness whose evidence is important to the applicant’s case is not accepted. However, this was not a case where certain witnesses’ evidence was merely not accepted. In the primary judgment it was recorded that:
a)Mr Miller said that neither he nor his colleagues told the pump operator to leave and the operator made the decision himself after having made some telephone calls. (at [24])
…
According to a statement to police made by Mr Miller and dated 6 December 2011, a copy of which was annexed to his affidavit affirmed 23 July 2012, Messrs Miller, Koh and Razaghi were checking the concrete pump when Mr Gittany approached them, along with four or five other site workers, and started to abuse them, saying things like “get the fuck off the job” and “I’ve called the police”. (at [26])
b)Mr Koh said in his police statement that when he and his colleagues were talking to the pump operator, Mr Gittany and seven or eight of “his” workers surrounded them. One of them had a hammer in his hand. Mr Koh stated that Mr Gittany said to them:
Fuck off, get out of the building site. I’m giving you 10 minutes to leave
while the building workers also yelled and told them to “fuck off”. In his oral evidence he said that he clearly remembered that Mr Gittany had said this. (at [37])
c)Mr Razaghi said that he could hear what Mr Miller said to the pump operator in relation to whether he had current workers compensation insurance but did not remember him telling the operator to pack up and leave. He deposed that when the workers compensation insurance issue was raised with the pump operator, the latter said that he was “not going to risk it” and started to pack up.
Mr Razaghi stated that a short time after he and his colleagues spoke to the pump operator they were approached by Mr Gittany and five or six building workers. Mr Gittany proceeded to yell at him to get back into the car and to leave the jobsite or he would call the police. (at [44] and [45])
d)When [Mr Gittany] went, alone, to see what was going on he heard Mr Miller say to the truck driver words to the effect of:
Turn around and go back there is going to be no pour today.
In his oral evidence, Mr Gittany said that Mr Miller told the operator to “pack up and go home.” Mr Gittany said that the operator said:
They’re saying all this bullshit, they want me to pack up and go home. (at [58])
In relation to that evidence I found that:
Overall, where Mr Gittany’s evidence differs from that of Messrs Miller, Koh and Razaghi, I prefer his evidence. (at [107])
and
… I find that Mr Gittany did not threaten Messrs Miller, Koh and Razaghi or endeavour to keep them from re-entering the Premises in the manner alleged by the CFMEU or for the reason implicitly advanced by the CFMEU as the motivation for such conduct. (at [109])
That is to say, I concluded that Messrs Miller, Koh and Razaghi had not been telling the truth when they said that Mr Gittany had behaved in a threatening way. Consequently, this aspect of the case was not a situation of a party not making out its allegations because its evidence was not persuasive but was, instead, a situation where that aspect of the proceeding was based on allegations which were not true. It was not reasonable to make such allegations or to base part of the case on them.
For these reasons, I find that the CFMEU lacked reasonable cause to allege a breach of s.502 of the FWA.
As to the allegation of breach of s.501 of the FWA, the parties largely agreed on the facts which were relied on to ground it, namely that Mr Gittany would not permit Messrs Miller, Koh and Razaghi to re-enter the Premises until the police arrived. Consequently, the matter in issue largely turned on the proper interpretation of the section in question. The allegation also turned on whether the delay in permitting re-entry was unduly long, which was a factual issue open to debate.
For those reasons, I do not conclude that the CFMEU lacked reasonable cause to allege a breach of s.501 of the FWA.
As part of the proceeding was brought without reasonable cause, I conclude that the proceeding, in the form it took in the Court, was instituted without reasonable cause.
Conclusion
As I have concluded that the proceeding was instituted without reasonable cause because approximately half of it was brought without reasonable cause, I find that the appropriate order to make in respect of the respondents’ application for costs is that the applicant pay half of their costs of the proceeding. In the event that the parties cannot agree on the amounts to be paid they will have liberty to apply for an order assessing or determining those costs or referring the matter for taxation.
Finally, costs orders were made against the respondents at certain interlocutory stages of the proceeding. It would be efficient to set those orders off against the costs order in respect of the entire proceeding and there will be orders accordingly.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 10 May 2013
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