Laing v Construction, Forestry, Mining and Energy Union

FEDERAL COURT OF AUSTRALIA

Laing v Construction, Forestry, Mining and Energy Union [2005] FCA 765

WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996)  -v-  CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and JOHN CUMMINS  and  S J HIGGINS PTY LTD  and  SHANE CHRISTOPHER SHEEDY

VID 895 of 2003

RYAN J
10 JUNE 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 895 of 2003

BETWEEN:	WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996) Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
AND	JOHN CUMMINS Second Respondent
AND	S J HIGGINS PTY LTD Third Respondent
SHANE CHRISTOPHER SHEEDY Fourth Respondent
JUDGE:	RYAN J
DATE OF ORDER:	10 JUNE 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant have leave to file and serve by 8 July 2005 a further amended application and a further amended statement of claim conforming generally with the reasons for judgment published this day.

2.Subject to any further or other order, each respondent file and serve by 5 August 2005 his or its amended defence to the further amended statement of claim referred to in paragraph 1 of this Order.

3.Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

4.There be a directions hearing on a date not before 5 August 2005 to be fixed after consultation with the parties.

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	VID 895 of 2003

BETWEEN:	WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996) Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
AND	JOHN CUMMINS Second Respondent
AND	S J HIGGINS PTY LTD Third Respondent
SHANE CHRISTOPHER SHEEDY Fourth Respondent

JUDGE:	RYAN J
DATE:	10 JUNE 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. There are before the Court two motions on notice, one by the applicant dated 30 November 2004 and the other by the third respondent S.J. Higgins Pty Ltd (“the third respondent”) and the fourth respondent Shane Christopher Sheedy (“Sheedy”) dated 3 December 2004.  By its motion, the applicant seeks leave to file and serve a further amended application (“the proposed further amended application”) and a further amended statement of claim (“the new statement of claim”).  However, the motion by the third and Sheedy seeks;

   ‘1.       That:

   (a)paragraphs 55-64 of the pleading be struck out; (or alternatively)

   (b)paragraphs 55-64 and paragraphs 42-50 and 52-53 of the pleading be struck out; (or alternatively)

   (c)paragraphs 55-64 and paragraphs 42-50 and 52-3 and paragraphs 5, 43, 51 and 54 be struck out; (or alternatively)

   (d)the pleading be struck out.

   2. That the Applicant be given leave to re-plead, in such form, as he is advised.’

   Background

2. The original application was made under s 170NC of the