MX Constructions Pty Limited v ADCO Constructions Pty Limited

FEDERAL COURT OF AUSTRALIA

MX Constructions Pty Limited v Adco Constructions Pty Limited
[2004] FCA 193

MX CONSTRUCTIONS PTY LIMITED and INSPECTOR GREGORY CHARLES ALFRED v ADCO CONSTRUCTIONS PTY LIMITED and DAVID RIX

N1032 of 2003

WILCOX J
3 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1032 of 2003

BETWEEN:

MX CONSTRUCTIONS PTY LIMITED
FIRST APPLICANT

INSPECTOR GREGORY CHARLES ALFRED
SECOND APPLICANT

AND:

ADCO CONSTRUCTIONS PTY LIMITED
FIRST RESPONDENT

DAVID RIX
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

3 MARCH 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        It be declared that:

(a)each of the respondents has contravened s 170NC(1) of the Workplace Relations Act 1996 (Cth); and

(b)the first respondent has contravened s 298K(2) of the said Act.

2.A penalty of $2,000 be imposed on the first respondent pursuant to ss 170NF(2) and 298U(a)(i) of the said Act.

3.        The amount of the said penalty is to be paid into Consolidated Revenue.

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	N 1032 of 2003

BETWEEN:

MX CONSTRUCTIONS PTY LIMITED
FIRST APPLICANT

INSPECTOR GREGORY CHARLES ALFRED
SECOND APPLICANT

AND:

ADCO CONSTRUCTIONS PTY LIMITED
FIRST RESPONDENT

DAVID RIX
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	3 MARCH 2004
PLACE:	SYDNEY

REASONS FOR EX TEMPORE JUDGMENT

WILCOX J:

1. I have given consideration to all of the matters that have been put to me by counsel.  I see no need to reserve my decision or to prepare elaborate reasons for judgment.  The facts of the matter are not controversial; they are set out in an agreed statement of facts, which has been marked as exhibit A.  That agreed statement is supplemented by three affidavits which have been read this morning, namely, the affidavit of Monica Seixas Nicholson dated 23 January 2004, the affidavit of Paul Ernest Chapman dated 27 February 2004 and the affidavit of David John Rix of the same date.

2. I do not think there is any need for me to summarise the relevant facts. It is admitted that the first respondent, Adco Constructions Pty Limited (‘Adco’), infringed s 170NC(1) of the Workplace Relations Act 1996 (Cth) (‘the Act’) with intent to coerce another person, namely the first applicant, MX Constructions Pty Limited (‘MX’), to make an agreement under Division 2 or 3 of Part VIB of the Act.

3. It is also admitted that the second respondent, David Rix, committed the same infringement. Further, it is admitted that Adco infringed ss 298K(2)(a) or (d) of the Act for a prohibited reason, being the reason specified in s 298L(1)(i) of the Act.

4. Put shortly, Adco had agreed to grant to MX a subcontract in respect of building work at Dural.  As a result of forming a belief that there may be a problem between MX and a registered industrial organisation, the Construction, Forestry, Mining and Energy Union (‘CFMEU’), officers of Adco, including Mr…