VICT v CFMMEU - [2018] VSC 181

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S CI 2017 04871

VICTORIA INTERNATIONAL CONTAINER TERMINAL LTD T/A VICT (ACN 164 915 655)	Plaintiff
v
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2018
DATE OF JUDGMENT:	20 April 2018
CASE MAY BE CITED AS:	VICT v CFMMEU
MEDIUM NEUTRAL CITATION:	[2018] VSC 181

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PRACTICE AND PROCEDURE – Application for temporary stay – Amalgamation of Maritime Union of Australia and Construction, Forestry, Mining and Energy Union – Maritime Union of Australia deregistered – Amalgamation decision subject to appeal in Fair Work Commission – Potential for amalgamation to be set aside and Maritime Union of Australia to be reinstated as defendant in proceeding – Stay of proceedings inconsistent with overarching purpose of Civil Procedure Act 2010 – Application refused – Fair Work (Registered Organisations) Act 2009 (Cth) ss 44, 73, 79 and 80 – Civil Procedure Act 2010 ss 7, 9 and 43.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Wood QC with Mr N Burmeister	Seyfarth Shaw
For the Defendant	Mr S J Moore QC	Slater & Gordon Lawyers

HIS HONOUR:

Introduction

By a generally indorsed writ filed on 1 December 2017 the plaintiff (‘VICT’) commenced proceedings against the Maritime Union of Australia (‘MUA’) and the Construction, Forestry, Mining and Energy Union (‘CFMEU’). Those proceedings arose out of the continual presence between 27 November 2017 and 12 December 2017 of obstructive pickets at VICT’s premises at 78 Webb Dock Drive, Port Melbourne (‘Webb Dock site’). On 1 December 2017 the Court granted an injunction restraining the MUA from preventing access to the Webb Dock site. On 12 December 2017 the injunction was extended to include the CFMEU.[1]
[1]VICT v MUA & CFMEU; VICT v Hilakari [2017] VSC 762.

The Court’s judgment extending the injunction to the CFMEU included the following findings:

8.On 1 December 2017 the Court heard and granted an application for injunctions restraining the MUA from preventing access to the site. The MUA made no submissions in opposition to the grant of the injunction, its only submissions were directed to the form of the order, and, in particular, opposing a 100 metre exclusion zone in the vicinity of the site.
9.On the same day, the Court refused to grant an injunction against the CFMEU. I shall return to that matter in due course.
10.In the aftermath of the orders made on 1 December, the obstructive picket has remained in place. The MUA contends that it has complied with the Court's orders, and has had no involvement in the obstruction which has continued post 1 December. It advances this contention notwithstanding the fact that it appears that the MUA and its industrial interests in opposing the termination of its member's employment, and its trenchant opposition to the Plaintiff's current enterprise agreement, mean that it is the primary beneficiary of the unlawful action…

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 VICT v CFMMEU

Details

AGLC: Vict v CFMMEU [2018] VSC 181
Case: [2018] VSC 181
Decision Date: 20 April 2018

CaseChat Overview and Summary

The case of VICT v CFMMEU involved the Victorian government and the Construction, Forestry, Mining and Energy Union (CFMMEU) as parties. The dispute centred on an application by the government for a temporary stay of proceedings following the amalgamation of the Maritime Union of Australia (MUA) with the CFMMEU. The MUA was deregistered as a result of the amalgamation, and the application for a stay was made while an appeal against the amalgamation decision was pending before the Fair Work Commission. The potential outcome of the appeal was that the amalgamation could be set aside, reinstating the MUA as a defendant in the proceeding. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether granting the application for a temporary stay of proceedings was appropriate under the circumstances. The key legal issue was whether a stay of proceedings would be consistent with the overarching purpose of the Civil Procedure Act 2010, given the potential for the MUA to be reinstated as a defendant. The court considered the relevant provisions of the Fair Work (Registered Organisations) Act 2009 and the Civil Procedure Act 2010, particularly sections 7, 9, 43, 44, 73, 79, and 80. The court had to balance the potential for injustice if the proceedings continued against the overarching purpose of ensuring that the administration of justice is conducted fairly and efficiently.

In its decision, the court determined that a stay of proceedings was not warranted in this case. The court found that the overarching purpose of the Civil Procedure Act 2010 was not served by granting a temporary stay, as it would not align with the efficient administration of justice. The potential for the MUA to be reinstated as a defendant did not, in itself, justify a stay of proceedings. The court concluded that the proceeding should continue, allowing the issues to be resolved in the context of the overarching purpose of the Civil Procedure Act 2010. The application for a temporary stay was accordingly refused.

The court made an order that the application for a temporary stay of proceedings be refused. The court did not grant any stay, allowing the proceeding to continue as per the statutory requirements and overarching purpose of the Civil Procedure Act 2010.

Orders