Laing v Construction, Forestry, Mining and Energy Union (No 2) - [2006] FCA 750

FEDERAL COURT OF AUSTRALIA
Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750
WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996) and NIGEL HADGKISS -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
16 JUNE 2006
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)
First Applicant

NIGEL HADGKISS
Second 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:

16 JUNE 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The proceeding be dismissed in relation to any relief claimed against the fourth respondent Shane Christopher Sheedy (“Sheedy”) personally.
2.The applicants have leave to file and serve, by 7 July 2006, a further amended application conforming generally with the draft further amended application filed on 8 July 2005 but further amended to take account of:
(a)the dismissal of the proceeding as against Sheedy ordered by paragraph 1 of this Order; and

(b)       the reasons for judgment published this day.
3.The applicants have leave to file and serve, by 7 July 2006, a further amended statement of claim conforming generally with the draft further amended statement of claim filed on 8 July 2005 (“the fresh statement of claim”) provided that:
(a)       paragraphs 47 and 48 be struck out of the fresh statement of claim;
(b)       the fresh statement of claim be further amended;
(i)to reflect the dismissal of the proceeding as against Sheedy effected by paragraph 1 of this Order; and

(ii) to conform generally with the reasons for judgment published this day.

4.The amendments authorised by this Order be made by filing a fresh document in accordance with O 13 r 9 of the Rules of this Court.
5.The respondents file and serve by 28 July 2006 their defences to the further amended statement of claim authorised by paragraph 3 of this Order.

6. The directions hearing herein be adjourned to 11 August 2006.
7.Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other 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)
First Applicant

NIGEL HADGKISS
Second 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:

16 JUNE 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
(in consequence of joinder of claim for relief…

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: [2006] FCA 750
Decision Date: 16 JUNE 2006

CaseChat Overview and Summary

The case of Laing v Construction, Forestry, Mining and Energy Union (No 2) involved the plaintiff, Laing, suing various respondents, including Shane Christopher Sheedy, for alleged contraventions of certain sections of the Act. The dispute centred around the validity and clarity of the allegations made in the plaintiff's statement of claim, specifically paragraph 70, which the court found to be problematic in its aggregation of several allegations. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the plaintiff's statement of claim sufficiently alleged contraventions of the Act by the defendants, particularly focusing on the drafting and clarity of paragraph 70. The court had to determine if the paragraph correctly alleged the contraventions in the quadruple alternative and if it was necessary to include it at all. Additionally, the court considered whether the plaintiff should be granted leave to amend their statement of claim to correct these issues.

The court found that paragraph 70 of the plaintiff's statement of claim should be amended to clarify that the alleged contraventions were pleaded in the quadruple alternative. The court also concluded that the proceeding should be dismissed in relation to any relief claimed against Sheedy personally. The court granted the plaintiff leave to file and serve further amended applications and statements of claim that conform to the fresh application and fresh statement of claim but are further amended to reflect the dismissal of the proceeding against Sheedy and the court's reasons for judgment. The court further ordered that the new documents should not retain paragraphs that are no longer relied upon.

The final orders included dismissing the proceeding in relation to any relief claimed against Sheedy, granting the plaintiff leave to file and serve further amended applications and statements of claim by specific dates, and reserving liberty for any party to apply for further orders. The directions hearing was adjourned to a later date, and the respondents were required to file and serve their defences to the further amended statement of claim.

Orders

Orders of the court

1. The proceeding be dismissed in relation to any relief claimed against the fourth respondent Shane Christopher Sheedy (“Sheedy”) personally.

2. The applicants have leave to file and serve, by 7 July 2006, a further amended application conforming generally with the draft further amended application filed on 8 July 2005 but further amended to take account of:

(a) the dismissal of the proceeding as against Sheedy ordered by paragraph 1 of this Order; and

(b) the reasons for judgment published this day.

3. The applicants have leave to file and serve, by 7 July 2006, a further amended statement of claim conforming generally with the draft further amended statement of claim filed on 8 July 2005 (“the fresh statement of claim”) provided that:

(a) paragraphs 47 and 48 be struck out of the fresh statement of claim;

(b) the fresh statement of claim be further amended;

(i) to reflect the dismissal of the proceeding as against Sheedy effected by paragraph 1 of this Order; and

(ii) to conform generally with the reasons for judgment published this day.

4. The amendments authorised by this Order be made by filing a fresh document in accordance with O 13 r 9 of the Rules of this Court.

5. The respondents file and serve by 28 July 2006 their defences to the further amended statement of claim authorised by paragraph 3 of this Order.

6. The directions hearing herein be adjourned to 11 August 2006.

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

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

RYAN J

It is true, as Counsel for the third and fourth respondents has contended, that par 70 “rolls up” several allegations in one and should refer to those several contraventions “in the quadruple alternative.” I doubt the necessity for including par 70 at all but the objection can be overcome by amending it to read;‘By reason of one or more of the matters pleaded in paragraphs 61 to 69 above, S.J. Higgins contravened s 298K(2) of the Act.’Conclusion It follows, for the reasons explained above, that in addition to the orders made on 11 August 2005 there should be an order striking out the proceeding as against Sheedy. As well, I shall grant leave to the applicants to file and serve within 21 days a further amended application and a further amended statement of claim conforming generally with the fresh application and the fresh statement of claim but further amended to take account of the striking out of the proceedings as against Sheedy and of these reasons. In the interests of economy of space and to make them more readily intelligible those documents should not preserve earlier paragraphs which are no longer relied on but have been struck through. I shall adjourn the directions hearing to 11 August 2006 and reserve liberty to apply.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

Full text does not contain this section.

BETWEEN:	*WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996)* First Applicant
NIGEL HADGKISS Second 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

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

JUDGE:	RYAN J
DATE:	16 JUNE 2006
PLACE:	MELBOURNE