Finance Sector Union v Commonwealth Bank of Australia

[2005] FCAFC 176

FEDERAL COURT OF AUSTRALIA

Finance Sector Union v Commonwealth Bank of Australia [2005] FCAFC 176

FINANCE SECTOR UNION v COMMONWEALTH BANK OF AUSTRALIA
NSD 576 OF 2005

WILCOX, BRANSON AND MERKEL JJ
19 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 576 of 2005

BETWEEN:	FINANCE SECTOR UNION APPELLANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT
JUDGES:	WILCOX, BRANSON and MERKEL JJ
DATE OF ORDER:	19 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal be refused.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 576 of 2005

BETWEEN:	FINANCE SECTOR UNION APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT

JUDGES:	WILCOX, BRANSON and MERKEL JJ
DATE:	19 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The Court is of the opinion that leave to appeal should be refused. 

2. We refuse leave on the simple basis that the case the applicant for leave wishes to make, as canvassed in discussion with counsel this morning, is not pleaded, with sufficient clarity, in the Further Amended Statement of Claim.  We say nothing as to whether or not that case might have any merit, if it were properly pleaded.  Nor do we say anything of a definitive nature about the proper construction of the relevant clause of the Enterprise Bargaining Agreement.

3. It seems to us that Conti J was correct in concluding that both the Amended Statement of Claim and Further Amended Statement of Claim were defective.  His Honour was not asked to determine an application for leave to further amend the Further Amended Statement of Claim.

4. The order of the Court is that leave to appeal be refused

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:
Dated:            13 September 2005

Counsel for the Appellant:	Mr R Kenzie QC, Mr I Taylor
Solicitor for the Appellant:	Turner Freeman
Counsel for the Respondent:	Mr R Ellicott QC, Mr P R McGuire
Solicitor for the Respondent:	Freehills
Date of Hearing:	19 August 2005
Date of Judgment:	19 August 2005