Wotherspoon v Construction, Forestry, Mining and Energy Union - [2010] FCA 111

FEDERAL COURT OF AUSTRALIA
Wotherspoon v Construction Forestry Mining & Energy Union [2010] FCA 111

Citation: Wotherspoon v Construction Forestry Mining & Energy Union [2010] FCA 111

Parties: JOHN WOTHERSPOON v CONSTRUCTION FORESTRY MINING & ENERGY UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA, ELIAS SPERNOVASILIS, TROY DONALD GRAY , DEREK CHRISTOPHER, ADRIAN MCLOUGHIN and MATTHEW HUDSON

File number: VID 936 of 2008

Judge: JESSUP J

Date of judgment: 23 February 2010

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 5(1)(a), 36(1), 38, 48, 57
Fair Work (Registered Organisations) Act 2009 (Cth)

Cases cited:
Attorney-General v Tichy (1982) 30 SASR 84
Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560
Construction, Forestry, Mining and Energy Union v Williams [2009] FCA 548
Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171
Cruse v CFMEU (2009) 182 IR 60
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543

Date of hearing: 25 September 2009

Date of last submissions: 22 February 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 35

Counsel for the Applicant: Mr N Green QC and Mr S Tracey

Solicitor for the Applicant: Office of the Australian Building and Construction Commission

Counsel for the First, Third, Fifth, Sixth and Seventh Respondents: Mr A Bandt

Solicitor for the First, Third, Fifth, Sixth and Seventh Respondents: Construction Forestry Mining & Energy Union

Counsel for the Second and Fourth Respondents: Mr K Farouque

Solicitor for the Second and Fourth Respondents: Maurice Blackburn Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 936 of 2008

BETWEEN:
JOHN WOTHERSPOON
Applicant

AND:
CONSTRUCTION FORESTRY MINING & ENERGY UNION
First Respondent

COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent

ELIAS SPERNOVASILIS
Third Respondent

TROY DONALD GRAY
Fourth Respondent

DEREK CHRISTOPHER
Fifth Respondent

ADRIAN MCLOUGHIN
Sixth Respondent

MATTHEW HUDSON
Seventh Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

23 FEBRUARY 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The proceeding be listed for directions at 9:30 am on 1 March 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 936 of 2008

BETWEEN:
JOHN WOTHERSPOON
Applicant

AND:
CONSTRUCTION FORESTRY MINING & ENERGY UNION
First Respondent

COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent

ELIAS SPERNOVASILIS
Third Respondent

TROY DONALD GRAY
Fourth Respondent

DEREK CHRISTOPHER
Fifth Respondent

ADRIAN MCLOUGHIN
Sixth Respondent

MATTHEW HUDSON
Seventh Respondent

JUDGE:

JESSUP J

DATE:

23 FEBRUARY 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, an Australian Building and Construction Inspector…

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.

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Details

Case: [2010] FCA 111
Decision Date

CaseChat Overview and Summary

The case of Wotherspoon v Construction, Forestry, Mining and Energy Union [2010] FCA 111 was heard in the Federal Court of Australia and involved an application by John Wotherspoon, an Australian Building and Construction Inspector, seeking declarations and penalties for alleged contraventions of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth). The respondents, including the Construction, Forestry, Mining and Energy Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and several individual organisers, admitted to the contraventions but contested the proposed penalties. The legal issues centred on whether the court should accept the agreed penalties or determine appropriate penalties in accordance with the circumstances of the contraventions and the need to sustain public confidence in the statutory regime. The court found that, while it should give weight to the parties' agreement, it was not obliged to accept it if the penalties were manifestly inadequate or excessive. The court decided to decline to proceed with the agreed penalties and instead list the proceeding for directions to allow the parties to make further submissions regarding the future conduct of the case.

Orders