Construction, Forestry, Mining and Energy Union v White - [2010] FCA 1077

FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077

Citation: Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077

Appeal from: Application for leave to appeal: White v Construction, Forestry, Mining and Energy Union [2010] FCA 835

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, RALPH EDWARDS, ROBERT GRAAUWMANS, MAURIE HILL, STEPHEN LONG, BRENDAN MURPHY, MICHAEL POWELL, SHAUN REARDON, GARETH STEPHENSON and ALEX TADIC v MICHELLE WHITE

File number: VID 690 of 2010

Judge: GRAY J

Date of judgment: 15 September 2010

Catchwords: APPEAL – leave – interlocutory judgment – dismissal of application to strike out paragraphs of statement of claim – application for imposition of statutory penalties – invocation of principle against double jeopardy – whether sufficient doubt about the correctness of the interlocutory judgment to warrant reconsideration – primary judge merely deferred questions of double jeopardy until trial – whether substantial injustice if the interlocutory judgment were wrong and leave to appeal were to be refused – right of appeal would exist if wrong finding of contravention in respect of two provisions based on same conduct

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 43(1)(a), 43(1)(c)
Federal Court of Australia Act 1976 (Cth) s 24(1A)

Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed
White v Construction, Forestry , Mining and Energy Union [2010] FCA 835 referred to

Date of hearing: 15 September 2010

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 14

Counsel for the applicants: Mr H Borenstein SC and Mr C W Dowling

Solicitor for the applicants: Slater & Gordon

Counsel for the respondent: Mr R Maidment SC

Solicitor for the respondent: Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 690 of 2010

BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Applicant

RALPH EDWARDS
Second Applicant

ROBERT GRAAUWMANS
Third Applicant

MAURIE HILL
Fourth Applicant

STEPHEN LONG
Fifth Applicant

BRENDAN MURPHY
Sixth Applicant

MICHAEL POWELL
Seventh Applicant

SHAUN REARDON
Eighth Applicant

GARETH STEPHENSON
Ninth Applicant

ALEX TADIC
Tenth Applicant

AND:
MICHELLE WHITE
Respondent

JUDGE:

GRAY J

DATE OF ORDER:

15 SEPTEMBER 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The motions the subject of the notice of motion filed on 16 August 2010 be dismissed.
2.The first applicant on the notice of motion pay the respondent’s costs of the notice of motion.

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

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 690 of 2010

BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Applicant

RALPH EDWARDS
Second Applicant

ROBERT GRAAUWMANS
Third Applicant

MAURIE HILL
Fourth Applicant

STEPHEN LONG
Fifth Applicant

BRENDAN MURPHY
Sixth Applicant

MICHAEL POWELL
Seventh Applicant

SHAUN REARDON
Eighth Applicant

GARETH STEPHENSON
Ninth Applicant

ALEX TADIC
Tenth Applicant

AND:
MICHELLE WHITE
Respondent

JUDGE:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 1077
Decision Date: 15 September 2010

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union and its members brought a case against Mr. White, a company director, in the Federal Court of Australia. The dispute centred around the alleged contravention of the Corporations Act 2001 (Cth) by Mr. White, specifically regarding the company's financial reporting. The plaintiffs sought statutory penalties and an order for Mr. White to pay compensation for losses incurred by the company’s shareholders. Mr. White filed an application to strike out certain paragraphs of the statement of claim, which the court dismissed. Mr. White subsequently appealed the interlocutory judgment, arguing that the dismissal of his application to strike out raised questions of double jeopardy, as the same conduct could lead to penalties under two different provisions of the law.

The court was required to determine whether the primary judge's interlocutory judgment contained sufficient doubt to warrant reconsideration, and if there was a substantial injustice if the interlocutory judgment were wrong and leave to appeal were refused. The court examined whether the primary judge had deferred questions of double jeopardy until the trial or if the interlocutory judgment definitively ruled on the issue. Additionally, the court considered the implications of a wrong finding of contravention in respect of two provisions based on the same conduct.

The court found that the primary judge had not definitively ruled on the double jeopardy issue but had instead deferred it until the trial. The court held that there was no sufficient doubt about the correctness of the interlocutory judgment to warrant reconsideration, as the primary judge had not made a definitive ruling on the issue of double jeopardy. The court also found that there was no substantial injustice that would result if the interlocutory judgment were wrong and leave to appeal were refused. Consequently, the appeal was dismissed, and the first applicant was ordered to pay the respondent's costs of the notice of motion. The court's decision underscores the importance of deferring complex legal issues, such as double jeopardy, until the merits of the case are fully explored at trial.

Orders

Orders of the court

1. The motions the subject of the notice of motion filed on 16 August 2010 be dismissed.

2. The first applicant on the notice of motion pay the respondent’s costs of the notice of motion.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077
Appeal from:		Application for leave to appeal: White v Construction, Forestry, Mining and Energy Union [2010] FCA 835
Parties:		CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, RALPH EDWARDS, ROBERT GRAAUWMANS, MAURIE HILL, STEPHEN LONG, BRENDAN MURPHY, MICHAEL POWELL, SHAUN REARDON, GARETH STEPHENSON and ALEX TADIC v MICHELLE WHITE
File number:		VID 690 of 2010
Judge:		GRAY J
Date of judgment:		15 September 2010
Catchwords:		APPEAL – leave – interlocutory judgment – dismissal of application to strike out paragraphs of statement of claim – application for imposition of statutory penalties – invocation of principle against double jeopardy – whether sufficient doubt about the correctness of the interlocutory judgment to warrant reconsideration – primary judge merely deferred questions of double jeopardy until trial – whether substantial injustice if the interlocutory judgment were wrong and leave to appeal were to be refused – right of appeal would exist if wrong finding of contravention in respect of two provisions based on same conduct
Legislation:		Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 43(1)(a), 43(1)(c) Federal Court of Australia Act 1976 (Cth) s 24(1A)
Cases cited:		Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed White v Construction, Forestry , Mining and Energy Union [2010] FCA 835 referred to
Date of hearing:	15 September 2010
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the applicants:	Mr H Borenstein SC and Mr C W Dowling
Solicitor for the applicants:	Slater & Gordon
Counsel for the respondent:	Mr R Maidment SC
Solicitor for the respondent:	Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 690 of 2010

JUDGE:	GRAY J
DATE OF ORDER:	15 SEPTEMBER 2010
WHERE MADE:	MELBOURNE