Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Ltd and Anor (No.3)

[2013] FCCA 362

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v HUME HIGHWAY CONSTRUCTIONS PTY LTD & ANOR (NO.3) [2013] FCCA 362

Catchwords:
PRACTICE & PROCEDURE – Application to strike out contention in notice to admit facts as being one of mixed fact and law – application to withdraw admissions.

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: 7 February 2013

Date of Last Submission: 7 February 2013

Delivered at: Sydney

Delivered on: 7 February 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

1. The respondents’ application to strike out paragraph 7 of the applicant’s notice to admit facts be refused.

2. The respondents’ application to withdraw their admissions of the facts contended in paragraph 7 of the applicant’s notice to admit facts and alleged in paragraph 9 of the points of claim be refused.

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

1. It is true, as Mr Weller submitted, that if a contention propounded in a notice to admit facts presents a question of mixed fact and law then it is not appropriate to be included in a notice to admit facts.  The issue therefore is: is the question whether the first respondent was the occupier of the relevant premises a mixed question of fact and law?  In my view, it is not.  In my view, it is simply a question of fact because I am not persuaded that the question of legal occupation in the sense submitted by Mr Weller, as something different from possession, is a matter truly in issue.

2. The question which I will have to decide is, relevantly, whether the first respondent refused or unduly delayed entry onto the premises by the applicant’s officers as the applicant alleges.  It is not necessary for the first respondent to have been the occupier of the premises in order to refuse entry.  It has been admitted that the first respondent is the owner of the premises and that would give it more than enough rights to exclude anybody from the property if it so chose.  So the question of whether or not it was the occupier is really not going to be particularly relevant to the decision I have to make.

3. For that reason, I do not consider that the relevant contention in the notice to admit facts does present a question of mixed fact and law. 

4. Whether the respondent should nevertheless be permitted to withdraw that admission is a separate question.  I appreciate the circumstances in which the respondents’ solicitor came to be aware of the issue of occupation as a potential matter for debate in this case, but the fact of the matter is that the application was filed on 23 April 2012, the points of claim were filed on 6 June 2012 and the matter was listed for hearing at a directions hearing which took place on 18 May 2012.  There was more than enough time to address this issue before the first day of the hearing and, in all of the circumstances, I am of the view that it is too late to withdraw the admission.  It is a course which may cause difficulties in the progress of the case today, particularly as it allied with an application to withdraw an admission in the defence which was filed over six months ago.  Anything of this sort should have been addressed much earlier than today. 

5. Both applications will be refused.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 24 May 2013