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 65Date 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
ApplicantAND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION
First RespondentRALPH EDWARDS
Second RespondentROBERT GRAAUWMANS
Third RespondentMAURIE HILL
Fourth RespondentSTEPHEN LONG
Fifth RespondentBRENDAN MURPHY
Sixth RespondentMICHAEL POWELL
Seventh RespondentSHAUN REARDON
Eighth RespondentGARETH STEPHENSON
Ninth RespondentALEX 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
ApplicantAND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION
First RespondentRALPH EDWARDS
Second RespondentROBERT GRAAUWMANS
Third RespondentMAURIE HILL
Fourth RespondentSTEPHEN LONG
Fifth RespondentBRENDAN MURPHY
Sixth RespondentMICHAEL POWELL
Seventh RespondentSHAUN REARDON
Eighth RespondentGARETH STEPHENSON
Ninth RespondentALEX TADIC
Tenth RespondentJUDGE:
KENNY J
DATE:
9 AUGUST 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
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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- Case
- [2010] FCA 835
- Decision Date
CaseChat Overview and Summary
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
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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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