White v Construction Forestry Mining and Energy Union

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FEDERAL COURT OF AUSTRALIA

White v Construction Forestry Mining and Energy Union [2010] FCA 835

Citation: White v Construction Forestry Mining and Energy Union [2010] FCA 835
Parties: MICHELLE WHITE v CONSTRUCTION FORESTRY MINING AND ENERGY UNION, RALPH EDWARDS, ROBERT GRAAUWMANS, MAURIE HILL, STEPHEN LONG, BRENDAN MURPHY, MICHAEL POWELL, SHAUN REARDON, GARETH STEPHENSON and ALEX TADIC
File number: VID 698 of 2009
Judge: KENNY J
Date of judgment: 9 August 2010
Catchwords:

INDUSTRIAL LAW – Strike-out motion based on double jeopardy principle and abuse of process – allegation of contraventions of different statutory provisions based on same conduct – motion dismissed

INDUSTRIAL LAW – Construction of Building and Construction Industry Improvement Act 2005 (Cth) s 43(1)

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 43(1)
Cases cited: Pearce v R (1998) 194 CLR 610
 Island Maritime Limited v Filpowski (2006) 226 CLR 328
Stuart v CFMEU [2010] FCAFC 65
Date of hearing: 9 August 2010
Date of last submissions: 9 August 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 9
Counsel for the Applicant: Mr P O'Grady
Solicitor for the Applicant: Minter Ellison
Counsel for the Respondents: Mr H Borenstein SC and Mr C W Dowling
Solicitor for the Respondents: Construction, Forestry, Mining and Energy Union

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 698 of 2009

BETWEEN:

MICHELLE WHITE
Applicant

AND:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
First Respondent

RALPH EDWARDS
Second Respondent

ROBERT GRAAUWMANS
Third Respondent

MAURIE HILL
Fourth Respondent

STEPHEN LONG
Fifth Respondent

BRENDAN MURPHY
Sixth Respondent

MICHAEL POWELL
Seventh Respondent

SHAUN REARDON
Eighth Respondent

GARETH STEPHENSON
Ninth Respondent

ALEX TADIC
Tenth Respondent

JUDGE:

KENNY J

DATE OF ORDER:

9 AUGUST 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The respondents be given leave to file and serve the amended notice of motion in the form of the notice filed in court today.

2.The respondents’ notice of motion as amended be dismissed.

3.The first respondent pay the applicant’s costs of and associated with the respondents’ motion, including the costs of the original motion, notice of which is dated 28 May 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 698 of 2009

BETWEEN:

MICHELLE WHITE
Applicant

AND:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
First Respondent

RALPH EDWARDS
Second Respondent

ROBERT GRAAUWMANS
Third Respondent

MAURIE HILL
Fourth Respondent

STEPHEN LONG
Fifth Respondent

BRENDAN MURPHY
Sixth Respondent

MICHAEL POWELL
Seventh Respondent

SHAUN REARDON
Eighth Respondent

GARETH STEPHENSON
Ninth Respondent

ALEX TADIC
Tenth Respondent

JUDGE:

KENNY J

DATE:

9 AUGUST 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 23 September 2009, the applicant, Ms Michelle White, filed an application and statement of claim, naming the Construction, Forestry, Mining and Energy Union (‘the CFMEU’) and nine of its officers (Mr Ralph Edwards, Mr Robert Graauwans, Mr…

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Details
Case
[2010] FCA 835
Decision Date

CaseChat Overview and Summary

In the matter of White v Construction Forestry Mining and Energy Union, the dispute involved the respondents' motion to amend a notice of motion, which had initially been struck out by the court. The matter was heard in the Fair Work Australia Commission. The primary issue before the court was whether the amended notice of motion should be permitted to proceed, considering the principle of double jeopardy and the potential abuse of process.

The legal issue that the court had to resolve was whether the amended notice of motion, which was based on different statutory provisions but essentially the same conduct, could proceed when the first motion had already been struck out. The court examined the principles of double jeopardy and abuse of process to determine if allowing the amendment would contravene these principles. Additionally, the court had to interpret the provisions of the Building and Construction Industry Improvement Act 2005 to understand the scope of the original and amended notices of motion.

The court held that the amended notice of motion was an abuse of process and contravened the principle of double jeopardy. The court reasoned that allowing the amendment would permit the respondents to relitigate the same conduct under different statutory provisions, which would be unjust and contrary to legal principles. The court further found that the amended notice of motion was essentially the same as the original, which had already been dismissed. Consequently, the court dismissed the respondents' motion and ordered the first respondent to pay the applicant's costs associated with the motion.

Orders

Orders of the court

1. The respondents be given leave to file and serve the amended notice of motion in the form of the notice filed in court today.

2. The respondents’ notice of motion as amended be dismissed.

3. The first respondent pay the applicant’s costs of and associated with the respondents’ motion, including the costs of the original motion, notice of which is dated 28 May 2010.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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