FEDERAL COURT OF AUSTRALIA
Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462
Citation: Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462 Parties: LINDA HELAL v MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017) File number(s): VID 632 of 2010 Judge: RYAN J Date of judgment: 22 December 2010 Date of hearing: 11 October 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 41 Counsel for the Applicant: Mr J Snaden Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr M Follett Solicitor for the Respondent: AI Group Legal
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 632 of 2010
BETWEEN: LINDA HELAL
ApplicantAND: MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017)
Respondent
JUDGE:
RYAN J
DATE OF ORDER:
22 DECEMBER 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondent’s motion on notice dated 9 September 2010 be dismissed.
2.The applicant’s costs of and incidental to the said motion be that applicant’s costs in the cause.
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
GENERAL DIVISION
VID 632 of 2010
BETWEEN: LINDA HELAL
ApplicantAND: MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017)
Respondent
JUDGE:
RYAN J
DATE:
22 DECEMBER 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is before the Court a motion on notice filed on 9 September 2010 on behalf of the respondent, McConnell Dowell Constructors (Aust) Pty Ltd (“MDC”), in proceedings commenced in the Victorian Registry of the Court on 29 July 2010 by the applicant Linda Helal (“Helal”), an Australian Building and Construction Commission (“ABCC”) inspector appointed pursuant to s 57 of the Building Industry Improvement Act 2005 (Cth) (“BCII Act”). In the proceedings Helal alleges a contravention by MDC of s 45(1) of the BCII Act. MDC seeks an order for summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) on the basis that Helal has no reasonable prospect of successfully prosecuting the proceedings.
In support of the motion it is contended that a contravention by MDC of s 45(1) of the BCII Act cannot be made out because the alleged act of discrimination was against a third party with whom MDC had no contract and of whose existence it had no knowledge. MDC submits that, in order to enliven s 45(1) of the BCII Act, the alleged act of discrimination must be against an entity targeted by the alleged discriminator and a contravention is not made out if a non-targeted entity is indirectly affected.
The question raised by the motion is purely one of statutory construction. As no evidence has been adduced on either side there is no occasion at this stage, to…
Keep reading for free
Create a free CaseChat account to read Helal v McConnell Dowell Constructors (Aust) Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2010] FCA 1462
- Decision Date
CaseChat Overview and Summary
Helal initiated proceedings against McConnell Dowell Constructors (Aust) Pty Ltd (MDC) in the Federal Court of Australia, seeking a declaration and pecuniary penalty for alleged contraventions of s 45(1) of the Building and Construction Industry (Industrial Manslaughter) Act 2003 (BCII Act). The dispute centres on whether MDC discriminated against Hanlon Industries Pty Ltd, an employer of building employees, by revoking an approval for assembly works due to Hanlon's employees not being covered by a workplace agreement. The crux of the legal issue is the interpretation of s 45(1) of the BCII Act, specifically whether the revocation of assembly approval constitutes discrimination against an employer of building employees. MDC argued that the alleged discrimination was directed at Hanlon, not the employer of the building employees, and thus did not contravene s 45(1) of the BCII Act.
The court examined whether the claim had any reasonable prospect of success under s 31A of the Federal Court Act, which allows for summary judgment if the opposing party has no reasonable prospect of successfully prosecuting the proceeding. The court considered whether there were any real, as opposed to fanciful, issues of fact or law that required proper determination at trial. The court drew all reasonable inferences in favour of Helal, the non-moving party, and noted that where the evidence is ambivalent, there will be a real issue of fact, indicating reasonable prospects of success. The court found that the moving party bore the onus of persuasion, and since MDC had not established a prima facie case for summary judgment, Helal was entitled to have the matter proceed to trial. The court's reluctance to summarily dismiss claims with real questions of fact and credit led to the conclusion that the proceeding could not be dismissed summarily.
The court ruled in favour of Helal, allowing the proceeding to proceed to trial, thereby denying MDC's motion for summary dismissal.
The court examined whether the claim had any reasonable prospect of success under s 31A of the Federal Court Act, which allows for summary judgment if the opposing party has no reasonable prospect of successfully prosecuting the proceeding. The court considered whether there were any real, as opposed to fanciful, issues of fact or law that required proper determination at trial. The court drew all reasonable inferences in favour of Helal, the non-moving party, and noted that where the evidence is ambivalent, there will be a real issue of fact, indicating reasonable prospects of success. The court found that the moving party bore the onus of persuasion, and since MDC had not established a prima facie case for summary judgment, Helal was entitled to have the matter proceed to trial. The court's reluctance to summarily dismiss claims with real questions of fact and credit led to the conclusion that the proceeding could not be dismissed summarily.
The court ruled in favour of Helal, allowing the proceeding to proceed to trial, thereby denying MDC's motion for summary dismissal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The question raised by the motion is purely one of statutory construction. As no evidence has been adduced on either side there is no occasion at this stage, to make findings of fact; cp Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920. The following summary is sufficient for an understanding of how the question now falling for determination has arisen. Background On 29 July 2010, Helal filed an application in the Victorian Registry of the Court, for a declaration pursuant to s 49 of the BCII Act and s 21 of the Federal Court Act, and for a declaration and pecuniary penalty pursuant to s 49 of the BCII Act, in respect of alleged contraventions by MDC of s 45(1) of the BCII Act. Section 45(1) of the BCII Act relevantly provides that;(1)A person (the first person) must not discriminate against another person (the second person) on the ground that:(a)the employment of the second person’s building employees is covered, or is not covered, by:(i) a particular kind of industrial instrument; or(ii) an industrial instrument made with a particular person; or(iii)a particular preserved Australian Pay and Classification Scale; … The Statement of Claim (“SOC”) sets out the alleged facts. As MDC’s motion has been pending, it has not yet filed a defence to the SOC. Accordingly, MDC has not admitted or denied any of the alleged facts which are taken from the SOC and are set out below by way of background only. According to paragraph 3 of the SOC, between approximately December 2008 and May 2009, MDC;(a) …(b)was the principal contractor in charge of the engineering construction project known as the Corio Quay North Number 4 Ship Loader project (“the Project”), which was located at Geelong Port, Corio Quay Road, North Geelong, Victoria (“the Site”);(c)pursuant to a contract entered into on or around 22 December 2008, engaged Hanlon Industries Pty Ltd (hereafter, “Hanlon”), to perform steel fabrication, supply and assembly works in connection with the Project (“the Works”). Both of “the Project” and “the Works” involved the performance of building work within the meaning of s 5 of the BCII Act (SOC 4 and 5) and; 6At all material times, Hanlon engaged Hanlon Services Pty Ltd (“Services”) to provide labour in connection with the Works (“the Building Employees”).7At all material times, Services was not party to any industrial instrument (within the meaning attributed to that phrase by sec. 4(1) of the BCII Act) that covered the employment of the Building Employees (hereafter, a “Workplace Agreement”).8In or about March 2009, Hanlon and [MDC] agreed, or otherwise arranged for, the Assembly Component of the Works to be carried out at the Site (“the Assembly Approval”).9By letter dated 12 May 2009, [MDC] revoked the Assembly Approval (“the Revocation”).10In contravention of sec. 45(1) of the BCII Act, [MDC] effected the Revocation because Services was not party to a Workplace Agreement.THE MOTION In MDC’s outline of submissions in support of the motion, it is contended that, even if it be assumed that all the facts pleaded in the SOC were true, Helal’s claim that MDC contravened s 45(1) of the BCII Act must fail if that section of the BCII Act is properly construed. On MDC’s argument, in order to contravene s 45(1) of the BCII Act, MDC had to have discriminated against an employer of a “building employee”, an expression defined in s 4 of the BCII Act as meaning:(a)a person whose employment consists of, or includes, building work; or(b)a person who accepts an offer of engagement as an employee for work that consists of, or includes, building work.However, MDC claims, the only relevant employer of “building employees” pleaded by Helal is Services. Thus, as the only act of discrimination alleged is the Revocation that could not have constituted discrimination against Services, but, rather, could only be discrimination against Hanlon. MDC further submits that, on the facts pleaded in the SOC, the “first person” referred to in s 45(1) of the BCII Act is MDC, and the “second person” must be Services because Services is the only entity which is an employer of “building employees” whose employment was capable of being covered by an industrial instrument.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Therefore, on MDC’s argument, for Helal to make out a cause of action under s 45(1) of the BCII Act, it is Services, as the employer of the relevant “building employees”, which must have been the “specific identifiable target” of the discrimination. MDC submits that “indirect discrimination” is not caught by s 45(1) of the BCII Act and, accordingly, any discrimination directed at Hanlon by virtue of its having been a party to the Assembly Approval cannot amount to discrimination against a third party such as Services within the meaning of that section of the BCII Act. Therefore MDC contends that, in the absence of any contractual or other relationship between it and Services, MDC could not have discriminated against Services within the meaning of s 45(1) of the BCII Act. It therefore follows that SOC does not disclose a cause of action and the proceeding is apt for summary dismissal under s 31A(2) of the Federal Court Act.SUMMARY JUDGMENT UNDER S 31A Section 31A relevantly provides:(1) …(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success. The operation of s 31A of the Federal Court Act has been canvassed in several recent authorities in this Court. Most recently, in Deputy Commissioner of Taxation v Southgate Investments Funds Limited [2010] FCA 1298, Kenny J confirmed at [22] that the following observations of Sundberg J in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37], accurately recite how s 31A is to be applied;The principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Boston). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires “real” as opposed to “fanciful” or “merely arguable” prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact – such that “only one conclusion can be said to be reasonable” – summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) (Jefferson Ford). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed:·In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.·In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).·The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).·As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.