Laing v Carroll - [2004] FCA 1509

FEDERAL COURT OF AUSTRALIA
Laing v Carroll [2004] FCA 1509
INDUSTRIAL LAW - application for declaration – requirement to produce documents made pursuant to s 83BH(4)(d) of the Workplace Relations Act 1996 (Cth) - whether declaratory relief available to enforce compliance by State employee with requirement, in circumstances where the employee enjoys crown immunity from criminal prosecution – whether notice which constitutes the ‘requirement’ is invalid for failure to adequately identify the source of the authorised officer’s power– declaration refused
Judiciary Act 1903 (Cth) s 39B(1A)
Workplace Relations Act 1996 s 83BH(4)(d)
Acts Interpretation Act 1901 (Cth) s 22(1)(j)
Federal Court of Australia Act 1976 (Cth) s 21
Conciliation and Arbitration Act 1904 (Cth) s 140(5)
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, referred to
McLeish v Faure (1979) 40 FLR 462, applied
Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421, referred to
Australian Building Construction Employees’ and Builders Labourer’s Federation v Master Builders Association of New South Wales (1986) 69 ALR 515, referred to
Thorson v Pine [2004] FCA 1316, followed
WILLIAM LAING v PETER CARROLL
V 971 OF 2003
MARSHALL J
23 NOVEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 971 OF 2003

BETWEEN:

WILLIAM LAING
APPLICANT

AND:

PETER CARROLL
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

23 NOVEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 971 OF 2003

BETWEEN:

WILLIAM LAING
APPLICANT

AND:

PETER CARROLL
RESPONDENT

JUDGE:

MARSHALL J

DATE:

23 NOVEMBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The proceeding before the Court is an application pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth) for a declaration that the respondent is required by s 83BH(4)(d) of the Workplace Relations Act 1996 (“the Act”) to produce the documents described in the notice served upon him by the applicant on 10 October 2003.
The proceeding raises for consideration the question of whether the Court should exercise its discretion to grant the applicant declaratory relief or to refrain from so doing, having regard to the particular factual and legal circumstances applicable to the matter.
Factual background
Between 1951 and 1956, the Gas and Fuel Corporation of Victoria (“the Corporation”) erected a high-pressure gasification plant at Morwell in the Latrobe Valley. The plant was designed to use local brown coal in the “Lurgi process” of gas production. The Corporation closed the plant in 1969, by which time it had outlived its utility, as a consequence of the discovery of natural gas in Bass Strait. In 1972 the Corporation sub-divided and sold most of the land at the Morwell gas works site (“the Morwell site”). The State of Victoria purchased the remainder (some 26 out of 48 lots).
In early 2002 the State decided to establish the Morwell Gasworks Remediation Project…

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.

Continue reading Laing v Carroll

Details

AGLC: Laing v Carroll [2004] FCA 1509
Case: [2004] FCA 1509
Decision Date: 23 NOVEMBER 2004

CaseChat Overview and Summary

The case of Laing v Carroll involved the applicant, an investigator with the Interim Building Industry Taskforce, who sought a declaration from the court regarding the respondent's compliance with a requirement to produce documents. The respondent, an employee of the State, was alleged to have failed to comply with a requirement made under section 83BH(4)(d) of the Workplace Relations Act 1996 (Cth). The applicant believed that the respondent's failure to comply with the requirement constituted a breach of the Act. The primary legal issue before the court was whether the applicant was entitled to a declaration of non-compliance, or whether such a declaration could only be made in the context of a prosecution under section 305A of the Act.

The court considered the arguments presented by both parties. The respondent contended that section 83BH(4)(d) did not create an obligation to comply with a requirement to produce documents, and that the only provision dealing with the consequences of a failure to comply was section 305A. The applicant argued that the failure to comply with a requirement made under section 83BH(4)(d) constituted a contravention of the requirement, and that a declaration of non-compliance could be made in such circumstances. The court found that the argument presented by the respondent was correct. The court concluded that section 83BH(4)(d) did not create an obligation to comply with a requirement to produce documents, and that the only provision dealing with the consequences of a failure to comply was section 305A.

The court dismissed the application and held that the applicant was not entitled to a declaration of non-compliance. The court found that section 83BH(4)(d) did not create an obligation to comply with a requirement to produce documents, and that the only provision dealing with the consequences of a failure to comply was section 305A. The court further found that the statutory scheme established by sections 83BH(4)(d), 83BH(5), and 305A was designed to ensure compliance with the requirement or notice, followed by a right to prosecute in the event of non-compliance.

In conclusion, the court dismissed the application and held that the applicant was not entitled to a declaration of non-compliance regarding the respondent's failure to comply with a requirement made under section 83BH(4)(d) of the Workplace Relations Act 1996 (Cth). The court found that section 83BH(4)(d) did not create an obligation to comply with a requirement to produce documents, and that the only provision dealing with the consequences of a failure to comply was section 305A.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

The proceeding raises for consideration the question of whether the Court should exercise its discretion to grant the applicant declaratory relief or to refrain from so doing, having regard to the particular factual and legal circumstances applicable to the matter.Factual background Between 1951 and 1956, the Gas and Fuel Corporation of Victoria (“the Corporation”) erected a high-pressure gasification plant at Morwell in the Latrobe Valley. The plant was designed to use local brown coal in the “Lurgi process” of gas production. The Corporation closed the plant in 1969, by which time it had outlived its utility, as a consequence of the discovery of natural gas in Bass Strait. In 1972 the Corporation sub-divided and sold most of the land at the Morwell gas works site (“the Morwell site”). The State of Victoria purchased the remainder (some 26 out of 48 lots). In early 2002 the State decided to establish the Morwell Gasworks Remediation Project (“the project”). The Victorian Government Property Group (“the VGPG”) is responsible for undertaking the project. In or about May 2002 the VGPG decided to advertise for registrations of interest by demolition contractors in relation to demolition work associated with the project. Eight registrations of interest flowed from the advertisement. Able Demolitions and Excavations Pty Ltd (“Able”) was one of the demolition contractors which forwarded a registration of interest to the VGPG. Able submitted its registration of interest on 12 June 2002. After receipt of the registrations of interest, the VGPG engaged CMR Consultants (Australia) Pty Ltd (“CMR”) to evaluate and select a short list of demolition contractors who would be invited to tender for work on the project. Able was not invited to tender. By letter dated 21 February 2003, CMR advised Able of its decision. The tenders, for those contractors on the short list, opened on 21 February 2003 and were to close on 30 April 2003. The applicant is an employee of the Commonwealth within its Department of Employment and Workplace Relations. He is attached to the Interim Building Industry Taskforce (“the Taskforce”) as an investigator. He is an authorised officer pursuant to s 83BG(1) of the Act. On 11 March 2003, a solicitor acting on behalf of Able, contacted the Taskforce with respect to a complaint by Able concerning its exclusion from the short list of tenderers to perform work at the Morwell site. Able subsequently provided the applicant with further details about its complaint. In essence, it asserted that it was excluded from work on the Morwell site because it was not party to an enterprise agreement to which the Construction Forestry Mining and Energy Union (“the CFMEU”) was a party. After further investigation, the applicant formed the view that the State may have refused to allow Able to tender for work at the Morwell site because Able was party to a certified agreement under s 170LK of the Act, being an agreement with its employees alone. He further considered that the State may have breached s 298K(2)(d) of the Act by refusing to engage Able as an independent contractor for the prohibited reason referred to in s 298L(1)(h) of the Act, that is, that Able was entitled to the benefit of a certified agreement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Industrial instrument is defined in s 298B to mean:“…an award or agreement, however designated, that:(a)is made under or recognised by an industrial law; and (b)concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees.”Can s 83BH(4)(d) be enforced in respect of State documents or at all by declaration? The documents sought by the applicant are held by the respondent in his capacity as an employee of the State. The only provision in the Act which deals with the failure to comply with a requirement made under s 83BH(4)(d) is s 305A(1). Section 305A(1) creates a criminal offence for contravention of a requirement made by an authorised officer under s 83BH(4)(d) or s 83BH(5). As a consequence of s 6(2), a State, and State employees, through whom a State acts, cannot be prosecuted under s 305A(1). Counsel for the respondent submitted that s 83BH does not create an obligation to comply with a requirement under sub-section 4(d) thereof. They contended that paragraph (d) does not create the obligation, the existence of which the applicant seeks to have declared. That is so, they submitted, irrespective of the fact that the respondent represents the State. Counsel for the applicant submitted that where power is exercised under s 83BH(4)(d) and a requirement is made to produce documents, a failure to comply constitutes a contravention of the requirement. They referred, in that context, to s 22(1)(j) of the Acts Interpretation Act 1901 (Cth) which confirms that a failure to comply constitutes a contravention. Accordingly, so the argument ran, a declaration of non-compliance can be made, in such circumstances, by a court. If the respondent has failed to comply with a requirement made by the applicant that may constitute a breach of the Act and, in an appropriate case, the applicant would be entitled to sue for a declaration that the respondent has breached the Act: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 393 (per McHugh, Gummow, Kirby and Hayne JJ). However, counsel for the respondent submitted that s 305A is the only provision in the Act that deals with the consequences of a failure to comply with s 83BH(4)(d) and that s 305A must be considered when identifying the intended scope of s 83BH(4)(d). Yet counsel agreed that the question whether s 83BH(4)(d) created an obligation to comply with its terms was a separate question from whether a person who fails to comply with a requirement made under it can be prosecuted under s 305A. Counsel for the applicant submitted that s 305A was not a provision designed to ensure compliance with s 83BH(4)(d). It is still possible that compliance with a requirement not occur, notwithstanding a successful prosecution under s 305A, followed by a custodial sentence or a fine. When the provisions of s 83BH(4)(d), s 83BH(5) and s 305A are read together, they disclose a statutory scheme which has the following steps:· the making of a requirement to produce documents and/or· the issuing of a notice for the production of documents, followed by·a right to prosecute designed to ensure that the requirement and/or the notice is complied with.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 971 OF 2003

BETWEEN:	WILLIAM LAING APPLICANT
AND:	PETER CARROLL RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	23 NOVEMBER 2004
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	23 NOVEMBER 2004
PLACE:	MELBOURNE