FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited ACN 004 282 268 [2009] FCA 274

PRACTICE AND PROCEDURE – consideration of an application for dismissal of a part of a proceeding against a second respondent pursuant to s 31A of the Federal Court of Australia Act 1976 – consideration of whether an Amended Statement of Claim in the proceeding properly pleads material facts supporting a claim of accessorial liability in respect of contended contraventions by a corporation of provisions of the Workplace Relations Act 1996 (Cth)

EMPLOYMENT – consideration of the adequacy of a pleading of a claim of accessorial liability pursuant to s 728 of the Workplace Relations Act 1996 (Cth) in respect of contended contraventions by a corporation of ss 767(3) and 767(7) of the Workplace Relations Act 1996 (Cth)

Federal Court of Australia Act 1976, ss 31A

Workplace Relations Act 1996 (Cth), ss 728, 736, 760, 767(3), 767(4), 767(7), 767(8)

Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd (2006) 236 ALR 720 – cited

Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited [2006] FCA 1416 – cited

Hicks v Ruddoch (2007) 156 FCR 574 – cited

Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 – cited

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 – cited

Yorke & Anor v Lucas (1985) 158 CLR 661 – cited

Giorgianni v The Queen (1985) 156 CLR 473 – cited

Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 – cited

Rural Press Ltd & Ors v Australian Competition and Consumer Commission (2002) 118 FCR 236 – cited

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 – cited

Hamilton v Whitehead (1988) 166 CLR 121 – cited

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (AMWU), THE ELECTRICAL TRADES UNION OF EMPLOYEES QUEENSLAND (ETUQLD), CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CFMEU), TERRY BRADLEY, WILLIAM KANE LOWTH, PETER ONG and MICHAEL ROBINSON v JOHN HOLLAND PTY LIMITED ACN 004 282 268 and STEPHEN SASSE

QUD66 of 2009

GREENWOOD J

27 MARCH 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  Paragraphs 44, 45, 46, 47, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 100 and 102 to 106 of the Amended Statement of Claim in the proceeding filed on 23 March 2009 are struck out.

2.                  The applicants are given leave to file and serve a further Amended Statement of Claim by 4.00pm, Thursday, 2 April 2009.

3.                  The costs of the respondents’ notice of motion filed 17 March 2009 are reserved. 

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application by the respondents by notice of motion for an order framed by paragraph 2 of the notice of motion in these terms:

2.         The proceeding be dismissed as against the Second Respondent on grounds that the proceeding discloses no reasonable cause of action, is frivolous or vexatious, or otherwise an abuse of process of the Court, or alternatively, that summary judgment be granted in favour of the Second Respondent against the Applicants.

2                     A Statement of Claim was filed and served by the applicants on 11 March 2009 and an Amended Statement of Claim was filed and served on 23 March 2009.  The application by the respondents was framed in terms of the original Statement of Claim.  However, the application now proceeds having regard to the formulation of the causes of action asserted against the second respondent, reflected in the amended pleading.  The application was heard during the course of Wednesday morning and I indicated to the parties that I would seek to give a decision on the application during the course of either Thursday or today subject to other urgent applications coming before the Court on Wednesday and Thursday and a trial set down for both days. 

3                     However, I have had an opportunity to consider the submissions of the parties and the relevant authorities.  For convenience, in these reasons, I will continue to describe the applicants on the motion as the respondents and the respondents on the motion as the applicants, although I will also refer to the first respondent, John Holland Pty Limited, as “John Holland”. 

4                     The causes of action against the second respondent are, of course, framed by the Amended Statement of Claim in the proceeding.  To the extent that the respondents seek an order for the dismissal of the proceeding as disclosing no cause of action or otherwise frivolous or an abuse of process, that question turns upon whether the Amended Statement of Claim pleads material facts upon which a cause of action is disclosed.  To the extent that the respondents seek an order for summary judgment in their favour, the respondents rely upon s 31A of the Federal Court of Australia Act 1976 (“the Act”).  Section 31A(2) of the Act provides that the Court may give judgment for a respondent in relation to the whole or any part of a proceeding if the Court is satisfied that an applicant has “no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”. 

5                     In Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd (2006) 236 ALR 720, Rares J observed that the Court ought to be very cautious to ensure that an injustice is not done to a party by summarily dismissing a proceeding where there may be contested questions of fact to be determined at trial and the resolution of that factual controversy might go one way or the other.  Rares J also observed that s 31A is engaged only to determine summarily a claim or defence which has no reasonable prospect of success.  That view has been followed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 416 per Jacobson J [39]; Hicks v Ruddoch (2007) 156 FCR 574 per Tamberlin J [13] and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 per Edmond J [10] to [15].

6                     In the present proceeding, there is simply an Amended Statement of Claim asserting material facts.  There is no defence and thus no engagement by the respondents on the amended pleading.  Nevertheless, the respondents say that the amended pleading is the second attempt by the applicants to frame a cause of action against the second respondent.  The first formulation of the cause of action against the second respondent was abandoned.  The second formulation asserts accessorial liability on the part of the second respondent in respect of contraventions of the Workplace Relations Act 1996 (Cth) (“the Workplace Relations Act”) by the first respondent, John Holland Pty Limited.  The central contention of the respondents is that the amended pleading fails to come to grips with the pleading of material facts which, if proved, would establish that Mr Sasse elected to engage in conduct fully knowledgeable of all of the integers comprising the contraventions on the part of the first respondent.  Since the pleading fails, it is said, in that fundamental sense and the applicants have made two attempts at framing a cause of action, the Court ought to proceed on the footing that the applicants have no reasonable prospect of either framing or succeeding in the cause of action the applicants are seeking to press against the second respondent. 

7                     In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Finkelstein J at [22] suggested, in these terms, that s 31A of the Act had raised the bar in resisting dismissal of a proceeding:

If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon.  The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case.  That will enable the judge to make some assessment of the merits.  It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial. 

                                                                                                [emphasis added]

8                     Justice Gordon in Jefferson Ford at [126] suggested that an assessment of whether a proceeding has no reasonable prospect of success requires an analysis of the pleadings, an assessment of the facts and, in part at least, a review of some of the evidence. 

9                     In the present proceeding, there has been no engagement by the respondents with the amended pleading.  That partly arises because the respondents contend that the amended pleading fails to plead material facts which establish, if proved, a cause of action based on accessorial liability on the part of Mr Sasse.  Therefore, there can be no relevant engagement or an assessment in terms of the methodology contemplated by either Gordon J or Finkelstein J.  Moreover, there can be no proper assessment of whether there is a genuine dispute as to factual matters as the material threshold facts have not been pleaded. 

10                  The applicants say that the pleading properly asserts material facts from which, if proved, accessorial liability in Mr Sasse can be established.  Nevertheless, the applicants say that the application by the respondents is premature and, in any event, the application should be treated as an application going to the adequacy of the amended pleading.  If the Court is not satisfied that the amended pleading properly frames material facts establishing a cause of action in accessorial liability, the relevant paragraphs of the pleading ought to be dismissed and the applicants ought to be given leave to re‑plead the claims. 

11                  The first question then is whether the amended pleading properly frames a cause of action in accessorial liability on the part of Mr Sasse. 

The statutory framework

12                  Part 15 of the Workplace Relations Act addresses “rights of entry”.  Section 736 sets out the objects of Part 15 (in addition to s 3) as establishing a framework that provides a balance between the rights of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws on the one hand and the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment on the other.  Part 15 provides (among other things) for permits to be issued and held by persons who understand their rights and obligations under that Part of the Workplace Relations Act.  Division 2 provides for the issue of permits.  Section 738 provides for a form of entry notice.  Divisions 4 and 5 address particular rights of entry by subject matter or purpose and Division 6 addresses rights of entry to hold discussions with employees.  Section 760 is in these terms:

760.      A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions.  For this purpose, eligible employee means any employee who:

            (a)        on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder’s organisation; and

            (b)        is a member of the permit holder’s organisation or is eligible to become a member of that organisation. 

13                  Division 7 of Part 15 contains particular statutory prohibitions.  Section 767(1) provides that a permit holder seeking to exercise rights under s 760 must not intentionally hinder or obstruct any person.  Section 767(3) is in these terms:

767(3)  A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises:

            (a)        under … section 760.

                                                                                                [emphasis added]

14                  Section 767(7) is in these terms:

767(7)  A person must not otherwise intentionally hinder or obstruct a permit holder exercising rights:

            (a)        under … section 760.

                                                                                                [emphasis added]

15                  Sections 767(3) and 767(7) are by ss 767(4) and 767(8) civil remedy provisions susceptible of enforcement under Division 8 of Part 15.  Division 3 of Part 14 provides for general provisions relating to civil remedy provisions.  Section 728 of Division 3 is in these terms:

728.         Involvement in contravention treated in same way as actual contravention

       (1)     A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.

       (2)     For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:

                (a)          has aided, abetted, counselled or procured the contravention; or

                (b)          has induced the contravention, whether by threats or promises or otherwise; or

                (c)          has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

                (d)          has conspired with others to effect the contravention.

16                  The applicants frame, in essence, causes of action against the first respondent in this way. 

17                  By paras 1, 2 and 3 of the pleading, the first applicant (“AMWU”), the second applicant (“ETU”) and the third applicant (“CFMEU”) are in the first and third cases an organisation of employees and in the second case a transitionally registered association for the purposes of the Workplace Relations Act.  By para 4, the fourth applicant, Mr Bradley, is an employee of the AMWU and a permit holder for the purposes of s 737 of Part 15.  The fifth, sixth and seventh applicants, Mr Lowth, Mr Ong and Mr Robinson are employees of the AMWU, the ETU and the CFMEU respectively and are each permit holders for the purposes of s 737 of Part 15.  By para 8, John Holland is a corporation, an employer and a person within s 767 of Part 15. 

18                  By para 9, the applicants plead that Mr Sasse is an employee of John Holland; he is the first respondent’s Group General Manager, Human Resources and Organisation Strategy; he acted at all material times within the scope of his actual or apparent authority as such an employee; and he is a person within s 767 of Part 15. 

19                  By paras 10, 11 and 12, the applicants plead three awards.  By para 10, the AMWU was a party to the National Metal and Engineering On‑site Construction Award (the “NMEOC Award”) which bound the AMWU, the Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.  By para 11, the ETU was a party to the Electrical Contracting Industry Award 2003 described as the “NAPSA” and by para 12, the CFMEU was a party to the National Building and Construction Industry Award (the “Construction Award”).  By paras 13 and 14, John Holland was bound by the NMEOC Award and the Construction Award by reason of its membership of the Australian Industry Group.  By para 15, John Holland was bound by the NAPSA. 

20                  By para 16, the applicants say that John Holland has been engaged in construction work in respect of port facilities at the Ports Corporation of Queensland, Abbot Point expansion premises located approximately 20 kilometres north of Bowen on the Abbot Point Peninsula.  Para 16 describes the premises as the “Abbot Point X 50 premises” which is a reference to expansion work to extend facilities at Abbot Point to a particular utilisation capacity.  By para 16, the applicants say that the scope of work being performed on the Abbot Point X50 premises is work provided for and defined by a contract between John Holland and Ports Corporation of Queensland described as the Abbot Point Coal Terminal X50 Expansion Marine Works Contract No. Q08‑004. 

21                  By paras 17, 18 and 19, the applicants plead that John Holland employed persons at the Abbot Point X50 premises engaged on on‑site construction work as defined in the NMEOC Award, engaged on‑site electrical workers as defined in the NAPSA and engaged in on‑site construction work as defined in the Construction Award.  By paras 20 to 25, the AMWU, the ETU and the CFMEU had members employed at the Abbot Point X50 premises or alternatively persons were employed who were eligible to become members of one of those organisations.  Paragraphs 26, 27 and 28 are in these terms:

26.       As a result of the matters pleaded in paragraphs 10, 13, 14, 17, 20 and 23 there were at all relevant times persons employed at the Abbot Point X50 premises who were “eligible employees” within the meaning of s 760 and Part 15 … in respect of the [AMWU]. 

27.       As a result of the matters pleaded in paragraphs 11, 15, 18, 21 and 24 there were at all relevant times persons employed at the Abbot Point X50 premises who were “eligible employees” within the meaning of s 760 and Part 15 … in respect of the [ETU].

28.       As a result of the matters pleaded in paragraphs 12, 13, 14, 19, 22 and 25 there were at all relevant times persons employed at the Abbot Point X50 premises who were “eligible employees” within the meaning of s 760 and Part 15 … in respect of the [CFMEU]. 

22                  An eligible employee, for the purposes of s 760, is not simply a person who is eligible to become a member of the relevant organisation.  An eligible employee for the purposes of s 760 is a person who carries out work on the relevant premises where that work is “covered by an award or collective agreement” that is binding on the relevant organisation and the person is a member or is eligible to become a member of the particular organisation.  The first limb of the definition, however, is directed to a factual and legal enquiry as to whether the employee is, on the relevant premises, carrying out work that is covered by an award or collective agreement.  The pleading by paras 26, 27 and 28 asserts a conclusion arising out of the preceding paragraphs that the relevant employees were “eligible employees” within the meaning of s 760.  Counsel for the applicants accepts, by force of the pleading itself, that it is necessary to plead, as part of its cause of action, against the first respondent, that there were persons, that is, employees, who were “eligible employees” within the meaning of s 760.  Otherwise, the contention would not be there. 

23                  Counsel for the applicants accepts that the pleading might be a little “inelegant” in the way it asserts the conclusion but what is intended, it seems, is that the work undertaken at the Abbot Point X50 premises is work falling within the relevant definitions in the NMEOC Award, the NAPSA and the Construction Award and the employees are carrying out work on the premises that is covered by each of those awards.  That second limb is wrapped up in the conclusionary pleading that the employees are “eligible employees within the meaning of s 760”.  It seems to me that if the applicants accept that it is necessary to plead that the employees are eligible employees for the purposes of s 760, the applicants ought to specifically plead as to the element required by the section, namely, that employees carry out work on the premises that is covered by each relevant award. 

24                  Although the respondents have not pleaded to the Statement of Claim, it is common ground between the parties that the central question in issue between the parties is whether two Union Greenfield Agreements entered into for the purposes of Division 2 of Part 8 of the Workplace Relations Act between John Holland and the Australian Workers’ Union, regulate the terms and conditions of employment in respect of work conducted on the premises, to the exclusion of any other award. 

25                  It seems to me that paras 26, 27 and 28 of the pleading ought to be reformulated so as to remove the inelegance and plead those matters that need to be pleaded as required by s 760 of the Workplace Relations Act. 

26                  By paras 29 to 43, events are pleaded that occurred in the period 17 to 19 November 2008 which are said to give rise to contraventions of ss 767(3) and 767(7) on the part of John Holland.  On 17 November 2008, Mr Bradley served a notice under s 760 upon John Holland which is said to meet the requirements of ss 738 and 763 of the Act for such a notice, to enter the Abbot Point X50 premises on 19 November 2008.  On 17 November 2008, Mr Lowth also served such a notice.  By paras 32 and 33, the applicants say that Mr Bradley and Mr Lowth were thus entitled to enter the premises and hold discussions with eligible employees.  By paras 34 and 35, Mr Bradley and Mr Lowth attended the premises on 19 November 2008, attempted to enter the premises and were refused entry by persons acting on behalf of John Holland and in particular Mr Ingham.  By para 36, Mr Bradley and Mr Lowth entered the premises on 19 November 2008 at 9.45am and were subsequently hindered and/or obstructed in exercising their rights as permit holders, by persons acting on behalf of John Holland and in particular Mr Ingham.  By para 37, Mr Ingham and other employees of John Holland were acting within the scope of their actual or apparent authority as employees or agents of John Holland. 

27                  By paras 38 and 39, John Holland contravened s 767(3) by refusing or unduly delaying entry to the premises by Mr Bradley and Mr Lowth.  By paras 40, 41, 42 and 43, the events described particularly at paras 35 and 36 gave rise to contraventions of s 767(7) on the footing that Mr Ingham and others intentionally hindered or obstructed Mr Bradley and Mr Lowth from exercising rights under s 760. 

28                  By paras 44, 45 and 46, the applicants plead events which engaged Mr Sasse. 

29                  The applicants plead that on 24 November 2008 (and thus after the events of 17 to 19 November 2008), Mr Sasse as servant or agent of John Holland wrote a letter to the AMWU asserting that the entry onto the premises on 19 November 2008 by Mr Bradley and Mr Lowth amounted to trespass.  The applicants plead that the letter accused Mr Bradley and Mr Lowth of breaching the Workplace Relations Act and proposed entry onto the premises by permit holders employed by the AMWU be limited by the terms of an “interim right of entry protocol”.  The applicants plead that the proposed protocol was more restrictive than the rights of a permit holder under Part 15 or that of an official of the AMWU.  By para 45, the AMWU wrote to John Holland denying that entry to the premises on 19 November 2008 by Mr Bradley and Mr Lowth amounted to a trespass. 

30                  By para 46, the applicants plead:

46.       On 3 December 2008 the Second Respondent on behalf of the First Respondent and as the servant or agent of the First Respondent, wrote to the [AMWU] asserting that permit holders employed by the [AMWU] had no right of entry onto the Abbot Point X50 premises for the purposes of s 760 of the Act.  It stated that any further entry onto the Abbot Point X50 premises for the purposes of s 760 of the Act would be trespass and treated as such by the First Respondent. 

31                  By para 47, the applicants plead in these terms:

47.       At all material times since 3 December 2008 the Second Respondent was concerned to ensure that:

            (a)        “permit holders” acting on behalf of the [AMWU, ETU and CFMEU] would only be allowed to enter onto the Abbot Point X50 premises on the terms set out in the letters dated 24 November 2008 and 3 December 2008 referred to in paragraphs 44 and 46 above;

            (b)        “permit holders” acting on behalf of the [AMWU, ETU and CFMEU] would be refused entry onto the Abbot Point X50 premises for the purpose of holding discussions with any eligible persons who wished to participate in those discussions;

            (c)        [Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson] would be refused entry onto the Abbot Point X50 premises for the purpose of holding discussions with any eligible persons who wished to participate in those discussions. 

32                  By para 48, the applicants plead:

48.        At all material times since 3 December 2008 the Second Respondent had instructed Mr Ingham and/or other relevant staff including the security officers employed or engaged at the Abbot Point X50 premises by the First Respondent to ensure that:

            (a)        “permit holders” acting on behalf of the [AMWU, ETU and CFMEU] would only be allowed to enter onto the Abbot Point X50 premises on the terms set out in the letters dated 24 November 2008 and 3 December 2008 referred to in paragraphs 44 and 46 above;

            (b)        “permit holders” acting on behalf of the [AMWU, ETU and CFMEU] would be refused entry onto the Abbot Point X50 premises for the purpose of holding discussions with any eligible persons who wished to participate in those discussions;

            (c)        [Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson] would be refused entry onto the Abbot Point X50 premises for the purpose of holding discussions with any eligible persons who wished to participate in those discussions. 

33                  Paragraph 44 asserts conduct by Mr Sasse in respect of earlier events.  Paragraphs 46, 47 and 48 assert conduct and a state of mind on the part of Mr Sasse on and from 3 December 2008. 

34                  By paras 49, 50, 51 and 52, Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson served on 10 February 2009 a notice for the purposes of s 760 on John Holland of an intention to enter the premises on 13 February 2009.  By paras 58 and 59, each of those men attended the premises, sought to enter for the purpose of holding discussions with eligible employees and were refused entry by John Holland employees including Mr Ingham.  By para 58(b), Mr Ingham told Mr Bradley that “there is already an agreement on this site and John Holland does not recognise your right of entry”.  By para 59, Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson entered the premises and were hindered and/or obstructed in exercising their rights as permit holders, by persons acting on behalf of John Holland.  The content of that conduct is set out in particulars of para 59 at (a) to (l). 

35                  By para 60, the conduct of a security officer, Mr Ingham, and other employees was conduct within the scope of the actual or apparent authority of those employees or agents of John Holland and in accordance with the instructions of Mr Sasse as described at para 48.

36                  By paras 61, 62, 63 and 64, John Holland contravened s 767(3) of the Workplace Relations Act by refusing or unduly delaying entry to the premises by Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson and by paras 65, 66, 67, 68, 69, 70, 71 and 72, John Holland contravened s 767(7) by obstructing and by hindering each of those four men from exercising rights under the Workplace Relations Act. 

37                  By para 73, the applicants plead accessorial liability on the part of Mr Sasse. 

38                  The matter is pleaded, substituting the content of the relevant cross‑referenced paragraphs, in this way.  As a result of the letter Mr Sasse wrote on 24 November 2008, the reply he received on 26 November 2008, the letter he wrote on 3 December 2008, his concern in terms of para 47, his instructions pleaded in para 48 and the conduct of employees or agents of John Holland described in para 58 and particularly the matters pleaded under para 59, undertaken in accordance with the instructions given by Mr Sasse described in para 48, Mr Sasse aided, abetted, counselled or procured the contravention by John Holland of ss 767(3) and 767(7) of the Workplace Relations Act, as contemplated by s 728(2)(a) in respect of the events that occurred on 13 February 2009.  Thus, Mr Sasse is treated as having contravened ss 767(3) and 767(7) (paras 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 and 85 of the amended pleading). 

39                  Further events occurred on 4 and 5 March 2009. 

40                  The formulation is in common terms to the earlier paragraphs.  On 4 March 2009, Mr Bradley served a notice on John Holland of an intention to enter the premises on 5 March 2009.  On the same day Mr Robinson served a notice of intention to enter the premises on 5 March 2009.  On 5 March 2009, each man sought to enter the premises and was refused.  The particulars of refusal are contained at para 91.  By para 92, on 5 March 2009 each man having entered the premises for the purpose of holding discussions with eligible employees and was hindered and/or obstructed in exercising rights as a permit holder.  The acts of hindering and obstructing each man involved exchanges with Mr Ingham and security officers.  By para 93, the conduct of those employees was within the scope of their actual or apparent authority and “in accordance with the instructions of [Mr Sasse] as described in para 48 of the pleading ([32]).  By paras 94 and 95, John Holland contravened s 767(3) in refusing entry and by paras 96, 97, 98 and 99, John Holland engaged in conduct of obstructing and hindering Mr Bradley and Mr Robinson.

41                  By para 100, as a result of the letter of 24 November 2008, the reply of 26 November 2008, the letter of 3 December 2008, Mr Sasse’s concern pleaded at para 47 ([31]), his instructions pleaded in para 48 ([32]) and the conduct of employees of John Holland described at paras 91 and 92 said to be undertaken in accordance with the instructions given by Mr Sasse in para 48, Mr Sasse aided, abetted, counselled or procured the contraventions of ss 767(3) and 767(7) of the Workplace Relations Act by John Holland.  By paras 101, 102, 103, 104, 105 and 106, the second respondent’s accessorial liability has the effect that Mr Sasse is treated as having contravened those provisions of the legislation. 

42                  The respondents criticise the pleading on the footing that the pleading simply fails to plead that Mr Sasse knew that each permit holder was entitled to enter the premises and knowingly engaged in conduct which by operation of ss 767(3) and 767(7) constituted a contravention by John Holland of those sections.  The pleading refers to correspondence Mr Sasse wrote on 24 November 2008 after the first event in November 2008 and a letter dated 3 December 2008 in which Mr Sasse asserted that the permit holders had no right of entry.  The pleading at para 47 pleads Mr Sasse’s state of mind of being concerned to ensure that consistent with his letters of 24 November 2008 and 3 December 2008, permit holders would be refused entry.  Similarly, para 48 pleads instructions given by Mr Sasse consistent with an opinion he had formed as recited in para 47 of the pleading.  The state of mind pleaded at para 47 is simply Mr Sasse’s contended view, as an employee of John Holland, that permit holders had no right of entry to the premises. 

43                  Mr Sasse’s opinion on that matter is either right or wrong. 

44                  However, these paragraphs of the pleading do not assert actual knowledge on the part of Mr Sasse that he knew and understood that each permit holder had a right of entry to the premises and notwithstanding that knowledge, he chose to engage in conduct by writing letters and issuing instructions which had the effect of refusing or unduly delaying entry to the premises or causing others to refuse or unduly delay entry to the premises, by a permit holder “entitled to enter the premises”.  Nor does the pleading assert actual knowledge on the part of Mr Sasse of intentional hindering or obstruction of a permit holder exercising rights given to such a person by s 760 of the Workplace Relations Act.  Accessorial liability requires a pleading of actual knowledge on the part of the accessory of each and every element of the offence or contravening conduct on the part, in this case, of John Holland Pty Limited and an election to engage in the relevant conduct. 

45                  The pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority.  It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland.  The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland.  In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation.  In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct.  To form the requisite intent he must have had “knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime” (Yorke & Anor v Lucas (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 at 346; Rural Press Ltd & Ors v Australian Competition and Consumer Commission (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; Hamilton v Whitehead (1988) 166 CLR 121). 

46                  It follows therefore that those paragraphs of the Amended Statement of Claim which assert that Mr Sasse aided, abetted, counselled or procured the contravention by John Holland of ss 767(3) and 767(7) of the Workplace Relations Act in respect of the events that occurred in February 2009 and March 2009 having regard to the conduct asserted on the part of Mr Sasse, have no reasonable prospects of success. 

47                  I accept the submission of the applicants in the proceeding that it is inappropriate to give summary judgment pursuant to s 31A of the Act in respect of that part of the proceeding consisting of the claim of accessorial liability against Mr Sasse.  Rather, I propose to order that those paragraphs of the Statement of Claim by which a claim of accessorial liability is made against Mr Sasse be struck out and the applicants be given leave to file and serve an Amended Statement of Claim by 4.00pm, Thursday, 2 April 2009.  I also give leave to amend the Statement of Claim in respect of those matters relating to paras 26, 27 and 28 of the Amended Statement of Claim and any paragraphs upon which they depend. 

48                  Although there may be other paragraphs which go to the issue of accessorial liability, the paragraphs of the amended pleading that are directed solely to the claim against Mr Sasse seem to be 44, 45, 46, 47, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 100 and 102 to 106.  Accordingly, I order that those paragraphs be struck out with leave to file and serve an Amended Statement of Claim.  No doubt, a reformulation of a claim of accessorial liability, if it can be properly formulated, will reflect some of those paragraphs. 

49                  The costs of the notice of motion will be reserved. 

Associate:

Dated:         27 March 2009