FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Radisich [2010] FCA 1004
Citation: Construction, Forestry, Mining and Energy Union v Radisich [2010] FCA 1004 Appeal from: Application for leave to appeal: Radisich v McDonald [2010] FCA 762 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS v JEFFREY JOSEPH RADISICH File number: WAD 205 of 2010 Judge: MCKERRACHER J Date of judgment: 10 September 2010 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal interlocutory judgment – strike out of defence – need to show substantial injustice if leave refused – pleadings should only be struck out where they are ‘manifestly groundless’ – evidence in support of defence not logically and rationally relevant to allegations
Held: leave refused
Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1A)
Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 48(2)(a), 48(2)(c)Federal Court Rules O 52 r 10
Cases cited: Agar v Hyde (2000) 201 CLR 552
Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2001] FCA 982
Bond v Barry (2007) 74 IPR 504Ex parteBucknell (1936)56 CLR 221
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484
Johnston v Cameron (2002) 124 FCR 160
Spencer v Commonwealth of Australia [2010] HCA 28Date of hearing: 3 September 2010 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Applicants: RC Kenzie QC with TJ Dixon Solicitor for the Applicants: JJ Nicholas
Construction, Forestry, Mining and Energy UnionCounsel for the Respondent: KE Pettit SC Counsel for the Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 205 of 2010
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First ApplicantTHE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second ApplicantAND: JEFFREY JOSEPH RADISICH
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
10 SEPTEMBER 2010
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The applicants do pay the respondent’s costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 205 of 2010
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First ApplicantTHE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second ApplicantAND: JEFFREY JOSEPH RADISICH
Respondent
JUDGE:
MCKERRACHER J
DATE:
10 SEPTEMBER 2010
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
The first and second applicants (the Unions) seek leave to appeal from a decision of a single judge to strike out a paragraph in the Unions’ pleading. In Radisich v McDonald [2010] FCA 762, the primary judge concluded…
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- Case
- [2010] FCA 1004
- Decision Date
CaseChat Overview and Summary
The legal issues that the court was required to decide related to the appropriateness of the defendant's reliance on subsequent events in their defence. The court needed to determine whether the defendant could validly rely on events that occurred after the alleged strike action as material facts, and whether these events were relevant to the cause of the strike action. The court also had to consider the appropriate test for striking out a pleading under O 11 r 16 of the Federal Court Rules.
The primary judge applied the test articulated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 to decide whether the pleading could be struck out. The judge found that the reliance on subsequent events alone could not provide any insight into whether actions taken in November caused the strike action in November/December or were even relevant to it. The judge concluded that the pleading was so obviously untenable that it could not possibly succeed. Consequently, the paragraph under consideration was struck out.
The final orders of the court were not explicitly stated in the text, but it is clear that the court ruled in favour of the plaintiff by striking out the contested paragraph from the defendant's pleading. This decision reinforces the importance of ensuring that pleadings are relevant and not manifestly groundless, particularly in cases where subsequent events are relied upon as material facts.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
No complaint is made about raising by way of defence the contention that the workers were already so resolved. No complaint is raised as to evidence from workers or others that the workers were so resolved in November/December 2009 and were not influenced by, inter alia, Mr McDonald. Complaint is raised only as to reliance on subsequent events in the manner pleaded in para 28A. THE PARAGRAPH UNDER CONSIDERATION Paragraph 28A which was struck out read as follows:28A.The strike action taken on 30 November 2009 by the Project workers referred to in paragraph 28(g) above was part of a series of protests instigated and taken by the Project workers over the issue of Motelling between that date and 30 January 2010.(a)On 22 and 23 of January 2010, almost all of the Project took strike action in protest of the introduction of Motelling;(b)The strike action taken by the Project workers on 22 and 23 January 2010 was organized in the absence of the Respondents; (c)On 25 and 26 January 2010, almost all the Project workers took strike action in protest over the introduction of Motelling; (d)On 27 January 2010, in the absence of the Second Respondent, Project workers held a meeting in the car park of the Project site commencing at 6.30am and resolved to continue taking strike action until at least 30 January 2010; (e)On 27 January 2010 the Federal Court ordered an ex parte interim injunction against various Project workers who were taking the said strike action;(f)A large number of the Project workers continued to take strike action until on or about 30 January 2010. (emphasis added) Broadly speaking, the complaint about this amendment is that relying on subsequent events, taken alone, as pleaded material facts can throw no light at all on whether actions taken in November (assuming they are proven), caused the strike action in November/December or were even relevant to it. THE PRIMARY JUDGE’S REASONING The primary judge proceeded on the basis that the jurisdiction under O 11 r 16 to strike out a pleading in the defence is to be exercised in accordance with the test articulated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129:The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’. Further at 130:... great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. ... the exercise of this jurisdiction should [not] be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim.