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United Group Resources Pty Ltd v Calabro (No 6)

United Group Resources Pty Ltd v Calabro (No 6)

Case [2012] FCA 431 2 May 2012

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FEDERAL COURT OF AUSTRALIA
United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431

Citation: United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431

Parties: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201, AGC INDUSTRIES PTY LTD ABN 57 079 939 898, MODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590, DOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700, MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836, CBI CONSTRUCTORS PTY LTD ABN 90 000 612 411, DECMIL AUSTRALIA PTY LTD ABN 58 116 776 991, FREO GROUP LIMITED ABN 64 009 325 124, MAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644, PCH GROUP LTD ABN 41 009 120 021, RCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814, RCR POSITRON PTY LTD ABN 38 106 084 879 and JOHN HOLLAND PTY LTD ABN 11 004 282 268 v BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED and THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

File number: WAD 14 of 2010

Judge: MCKERRACHER J

Date of judgment: 2 May 2012

Catchwords:
INDUSTRIAL LAW – application to amend final orders relating to 1,336 respondents who engaged in unlawful industrial action – reliance on new evidence from unrepresented respondents

PRACTICE AND PROCEDURE – when final orders may be amended under the slip rule – held that the slip rule allows for the variation of final orders to avoid doing injustice to the parties

PRACTICE AND PROCEDURE – when leave will be granted to discontinue – applicants permitted to discontinue proceeding against a respondent who died after judgment was entered – discontinuance held not to cause the respondent or his estate any injustice

Legislation: Federal Court Rules O 6 r 10(2), O 22 r 2(1)(d), O 35 r 7
Federal Court Rules 2011 r 1.04

Cases cited: Australian Communications and Media Authority v Clarity1 Pty Ltd (2008) 173 FCR 297
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
R v Cripps; Ex parte Muldoon [1984] QB 686
United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408

Date of hearing: 13 December 2011

Date of last submissions: 30 January 2012

Place: Perth

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 77

Counsel for the Applicants: S Wood SC with T Saunders

Solicitor for the Applicants: Freehills

Counsel for the CEPU and CFMEU Respondents: J Fiocco

Counsel for the AMWU Respondents: RL Hooker

Counsel for the Seventy-Second Respondent: The Seventy-Second Respondent appeared in person

Solicitor for the Respondents: As listed in the Respondents’ schedule ‘A’ to United No 5

Counsel for the Intervener: IM Neil SC

Solicitor for the Intervener: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

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 United Group Resources Pty Ltd v Calabro (No 6)

Details

AGLC: United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431
Case: [2012] FCA 431
Decision Date: 2 May 2012

CaseChat Overview and Summary

In the case of United Group Resources Pty Ltd v Calabro (No 6), the court was presented with an application to amend final orders concerning 1,336 respondents who had engaged in unlawful industrial action. The case arose out of a dispute in the industrial law context, where the applicants sought to vary the final orders made on 30 September 2011 to account for new evidence presented by unrepresented respondents. The Federal Court was tasked with determining whether the final orders could be amended under the slip rule to avoid doing injustice to the parties and whether leave should be granted to discontinue the proceedings against certain respondents who had died post-judgment.

The central legal issues before the court involved the application of the slip rule in varying final orders to incorporate new evidence and the appropriate circumstances for granting leave to discontinue proceedings against deceased respondents. The court considered whether the amendments proposed would prevent injustice to the parties and if discontinuance would prejudice the deceased respondents or their estates.

The court held that the slip rule allows for the variation of final orders when necessary to avoid injustice to the parties, and in this instance, the evidence presented justified the amendments. The court found that discontinuing the proceedings against respondents who had died post-judgment would not cause any injustice to the respondents or their estates, as the applicants had no further claims against them. Consequently, the court granted leave to discontinue the proceedings against the deceased respondents and amended the final orders to reflect the new evidence provided by the unrepresented respondents.

In summary, the court granted leave to discontinue the proceedings against the deceased respondent 254 and varied the final orders to reflect the new evidence concerning respondents 1215, 404, 593, and 176. The specific amendments included setting aside certain findings of industrial action and contraventions of the Fair Work Act 2009 (Cth) and the Building and Construction Industry Improvement Act 2005 (Cth) for the relevant respondents.

Orders

Orders of the court

1. The applicants be granted leave to discontinue the proceeding against respondent 254.

2. The orders made on 30 September 2011 be set aside insofar as they state that respondent 1215:

(a) engaged in industrial action within the meaning of s 19 of the Fair Work Act 2009 (Cth) (FW Act) on 27, 28 and 29 January 2010;

(b) engaged in building industrial action within the meaning of s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) on 27, 28 and 29 January 2010; and

(c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 27, 28 and 29 January 2010.

3. The orders made on 30 September 2011 be set aside insofar as they state that respondent 404:

(a) engaged in industrial action within the meaning of s 19 of the FW Act on 25 and 30 January 2010;

(b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25 and 30 January 2010; and

(c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25 January and 30 January 2010.

4. The orders made on 30 September 2011 be set aside insofar as they state that respondent 593:

(a) engaged in industrial action within the meaning of s 19 of the FW Act on 25, 27, 28 and 29 January 2010;

(b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25, 27, 28 and 29 January 2010; and

(c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25, 27, 28 and 29 January 2010.

5. The orders made on 30 September 2011 be varied and set aside only insofar as they state that respondent 176:

(a) engaged in industrial action within the meaning of s 19 of the FW Act on 22 January 2010;

(b) engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 22 January 2010; and

(c) contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 22 January 2010.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicants submit, and I accept, that the agreed (suspended) daily penalties should be imposed on Mr Cream in respect of his absence from work on 22, 23, 27, 28, 29 and 30 (1/2 day) January 2010.CONCLUSION On the basis of the foregoing, I am satisfied that the minute of proposed orders reflecting amendments to take into account the fresh evidence made available since the making of the further orders should be made. The orders will be:1.The applicants be granted leave to discontinue the proceeding against respondent 254.2.The orders made on 30 September 2011 be set aside insofar as they state that respondent 1215:(a)engaged in industrial action within the meaning of s 19 of the Fair Work Act 2009 (Cth) (FW Act) on 27, 28 and 29 January 2010;(b)engaged in building industrial action within the meaning of s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) on 27, 28 and 29 January 2010; and(c)contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 27, 28 and 29 January 2010.3.The orders made on 30 September 2011 be set aside insofar as they state that respondent 404:(a)engaged in industrial action within the meaning of s 19 of the FW Act on 25 and 30 January 2010; (b)engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25 and 30 January 2010; and(c)contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25 January and 30 January 2010.4.The orders made on 30 September 2011 be set aside insofar as they state that respondent 593:(a)engaged in industrial action within the meaning of s 19 of the FW Act on 25, 27, 28 and 29 January 2010;(b)engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 25, 27, 28 and 29 January 2010; and(c)contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 25, 27, 28 and 29 January 2010.5.The orders made on 30 September 2011 be varied and set aside only insofar as they state that respondent 176:(a)engaged in industrial action within the meaning of s 19 of the FW Act on 22 January 2010;(b)engaged in building industrial action within the meaning of s 36(1) of the BCII Act on 22 January 2010; and (c)contravened s 417(1) of the FW Act and s 38 of the BCII Act in respect of the industrial action taken by him on 22 January 2010.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431

Most Recent Citation

United Group Resources Pty Ltd v Calabro (No 7) [2012] FCA 432

Cases Citing This Decision

CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627
Citation 1 (Para 4)

…omission. See also as to the exceptional circumstances in which such jurisdiction might be exercised: United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303; De L v Director-General, NSW Department of Community Services (No 2) [1997] HC…
Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170
Citation 2 (Para 12)

…In the recent decision in United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431 McKerracher J made the following observations: [12] In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ held (at 303) that an order may be reviewed where the Court has good reason to consider that its earlier judgmen…
United Group Resources Pty Ltd v Calabro (No 7) [2012] FCA 432
Citation 3

…192 IR 160 United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431 Varley v Varley [2006] NSWSC 1025 Veen v R (No 2) (1988) 164 CLR 465 White v Construction Forestry Mining and Energy Union [2011] FCA 192 Woodside Burrup Pty Ltd v Constructio…

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Cases Cited

Maritime Union of Australia v Geraldton Port Authority [2012] FWA 3447
Citation 1 (Para 14)

…he industrial law context, Nicholson J considered the position of amendment to final orders in Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 (at [20]). His Honour held that regard must be had to the following factors: (1)"Generally speaking, it [the discretion] will not be exercised unless…
United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408
Citation 2 (Para 1)

…In United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 ( United No 5 ), I gave reasons for orders made on 30 September 2011 ( the Orders ) in this proceeding in which there were then 1,336 respondents. Certain changes have occurred in consequence of which amendments have been made to the Orders then pr…
Maritime Union of Australia v Geraldton Port Authority [2001] FCA 236
Citation 3 (Para 14)

…In the industrial law context, Nicholson J considered the position of amendment to final orders in Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 (at [20]). His Honour held that regard must be had to the following factors: (1)"Generally speaking, it [the discretion] will not be exercised unless the applicant can show that by acciden…
De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14
Citation 4 (Para 13)

…Similarly, in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207, the High Court (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) held in a joint judgment in respect of an application to reopen final orders before the entry of such orders (at 215) (footnotes omitted) that: The power…
Yenald Nominees Pty Ltd v Como Investments Pty Ltd [1996] FCA 377
Citation 5 (Para 14)

…iew of the contemplated order is necessary so that the orders made deal more adequately with the matter as litigated by the parties before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) ATPR ¶41-508 at 42,362 per Lee J citing Texas Company (Australasia) Ltd v Commissioner of Taxation (Cth) (1940) 63 CLR 382 at 457 per Starke J.…
Autodesk Inc v Dyason (No 2) [1993] HCA 6
Citation 6 (Para 12)

…In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ held (at 303) that an order may be reviewed where the Court has good reason to consider that its earlier judgment has proceeded under a misapprehension as to the facts or to the law and that the misapprehension cannot be attributed solely to the neglect or…

Legislation Cited

Federal Court Rules 2011 (Cth) 1.04
2 mentions (from Para 8)
Fair Work Act 2009 (Cth)
1 mention (from Para 57)

Citation:		United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431
Parties:		UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201, AGC INDUSTRIES PTY LTD ABN 57 079 939 898, MODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590, DOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700, MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836, CBI CONSTRUCTORS PTY LTD ABN 90 000 612 411, DECMIL AUSTRALIA PTY LTD ABN 58 116 776 991, FREO GROUP LIMITED ABN 64 009 325 124, MAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644, PCH GROUP LTD ABN 41 009 120 021, RCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814, RCR POSITRON PTY LTD ABN 38 106 084 879 and JOHN HOLLAND PTY LTD ABN 11 004 282 268 v BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED and THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
File number:		WAD 14 of 2010
Judge:		MCKERRACHER J
Date of judgment:		2 May 2012
Catchwords:		INDUSTRIAL LAW – application to amend final orders relating to 1,336 respondents who engaged in unlawful industrial action – reliance on new evidence from unrepresented respondents PRACTICE AND PROCEDURE – when final orders may be amended under the slip rule – held that the slip rule allows for the variation of final orders to avoid doing injustice to the parties PRACTICE AND PROCEDURE – when leave will be granted to discontinue – applicants permitted to discontinue proceeding against a respondent who died after judgment was entered – discontinuance held not to cause the respondent or his estate any injustice
Legislation:		Federal Court Rules O 6 r 10(2), O 22 r 2(1)(d), O 35 r 7 Federal Court Rules 2011 r 1.04
Cases cited:		Australian Communications and Media Authority v Clarity1 Pty Ltd (2008) 173 FCR 297 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 R v Cripps; Ex parte Muldoon [1984] QB 686 United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408
Date of hearing:	13 December 2011
Date of last submissions:	30 January 2012
Place:	Perth
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	77
Counsel for the Applicants:	S Wood SC with T Saunders
Solicitor for the Applicants:	Freehills
Counsel for the CEPU and CFMEU Respondents:	J Fiocco
Counsel for the AMWU Respondents:	RL Hooker
Counsel for the Seventy-Second Respondent:	The Seventy-Second Respondent appeared in person
Solicitor for the Respondents:	As listed in the Respondents’ schedule ‘A’ to United No 5
Counsel for the Intervener:	IM Neil SC
Solicitor for the Intervener:	Clayton Utz