FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Abbott (No 3)

[2011] FCA 340

1.    Upon the admissions which the 19th, 110th, 113th, 195th and 201st respondents (Defaulting Respondents) are deemed to have made consequent upon their non-compliance with the orders of the Court and the Federal Court Rules

THE COURT DECLARES THAT:

(a)    On 14 and 17-24 October 2008, each of the 19th, 110th, 113th and 195th respondents contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) by engaging in unlawful industrial action whilst being employed by CBI Constructors Pty Ltd (CBI) to construct the Phase V Expansion Project (Project) at the Burrup Peninsula (Industrial Action);

(b)    on 14 and 17-23 October 2008, the 201st respondent contravened s 38 of the BCII Act by engaging in the Industrial Action;

(c)    on 14 and 17-24 October 2008, the 19th respondent contravened s 494(1) of the Workplace Relations Act 1996 (Cth) (WR Act) by engaging in the Industrial Action prior to the nominal expiry date of the CBI Constructors Pty Ltd North West Shelf LNG Phase V Expansion Project (AMWU) Collective Agreement (AMWU Agreement) to which he was bound;

(d)    on 14 and 17-24 October 2008, each of the 110th, 113th and 195th respondents contravened s 494(1) of the WR Act by engaging in the Industrial Action prior to the nominal expiry date of the CBI Constructors Pty Ltd North West Shelf LNG Phase V Expansion Project (CFMEU and AWU) Collective Agreement (CFMEU Agreement) to which they were bound;

(e)    on 14 and 17-23 October 2008, the 201st respondent contravened s 494(1) of the WR Act by engaging in the Industrial Action prior to the nominal expiry date of the CFMEU Agreement to which he was bound;

(f)    the 19th respondent contravened clauses 8(3), 9 and 39(14) of the AMWU Agreement by engaging in the Industrial Action; and

(g)    each of the 110th, 113th, 195th and 201st respondents contravened clauses 8(3), 9 and 39(14) of the CFMEU Agreement by engaging in the Industrial Action.

AND THE COURT ORDERS THAT:

1.    Determination of any pecuniary penalties which may be imposed upon the:

(a)    Defaulting Respondents pursuant to s 49(1)(a) of the BCII Act for their contravention of s 38 of the BCII Act;

(b)    19th respondent for his contravention of clauses 8(3), 9 and 39(14) of the AMWU Agreement, pursuant to s 719 of the WR Act; and

(c)    110th, 113th, 195th and 201st respondents for their contravention of clauses 8(3), 9 and 39(14) of the CFMEU Agreement, pursuant to s 719 of the WR Act,

    be adjourned to the penalty hearing of the proceeding on a date to be fixed (Penalty Hearing).

2.    Liberty to the applicant to apply on such notice as a judge shall allow to discharge or vary the above Order.

3.    Costs including costs of today be reserved to the penalty hearing.

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.

REASONS FOR JUDGMENT

Introduction

1    On 24 March 2011 I made declarations variously that the 19th, 110th, 113th, 195th and 201st respondents (Defaulters) had contravened various provisions of the Building and Construction Industry Improvement Act (2005) (Cth), the Workplace Relations Act 1996 (Cth) as well as certain clauses of collective agreements.

2    I gave short oral reasons at that time for making those declarations. I now set out those reasons which have been edited but not as to alter their substance.

3    There are five notices of motion seeking orders pursuant to Order 35A of the Federal Court Rules in respect of the 19th, 110th, 113th, 195th and 201st respondents (Defaulters).

4    The applicant relies on the following affidavits:

(a)    affidavit of Allen George Mitchell sworn 2 June 2010;

(b)    affidavit of Ian Douglas Fraser sworn 3 June 2010;

(c)    affidavit of Christopher Brandon Grice sworn 12 June 2010;

(d)    affidavit of Brett Roland Roberts sworn 3 June 2010;

(e)    affidavit of Brett Roland Roberts sworn 11 March 2011;

(f)    affidavit of Duncan Gilbert sworn 21 March 2011; and

(g)    affidavit of Anthony Gaskell sworn 22 March 2011.

Service

5    In respect of the 19th respondent:

(a)    on 20 July 2010, the 19th respondent was served personally with the Originating Process in the proceeding;

(b)    the times for the 19th respondent to file a notice of appearance and defence have expired and the 19th respondent has failed to do either; and

(c)    on 17 March 2011, the 19th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011. Service was effected by the documents being left at his Irving quarters at Gap Ridge Village, Madigan Road, Karratha.

6    In respect of the 110th respondent:

(a)    on 19 May 2010, the 110th respondent was served personally with the Originating Process in the proceeding;

(b)    the times for the 110th respondent to file a notice of appearance and defence have expired and the 110th respondent has failed to do either; and

(c)    on 15 March 2011, the 110th respondent was served personally with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011.

7    In respect of the 113th respondent:

(a)    on 28 May 2010, the 113th respondent was served personally with the Originating Process in the proceeding;

(b)    the times for the 113th respondent to file a notice of appearance and defence have expired and the 113th respondent has failed to do either; and

(c)    on 15 March 2011, the 113th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011, by leaving the documents with a female person at his last known address, that person having said she knew the 113th respondent.

8    In respect of the 195th respondent:

(a)    on 12 June 2010, the 195th respondent was served personally with the Originating Process in the proceeding;

(b)    the times for the 195th respondent to file a notice of appearance and defence have expired and the 195th respondent has failed to do either; and

(c)    on 15 March 2011, the 195th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011, by leaving the documents with a person, who was apparently over the age of 16 years, at his last known address, that person having said he knew the 195th respondent.

9    In respect of the 201st respondent:

(a)    on 24 March 2010, the 201st respondent was served personally with the Originating Process in the proceeding;

(b)    the time for the 201st respondent to file a notice of appearance and defence has expired and the 201st respondent has failed to do either; and

(c)    on 15 March 2011, the 201st respondent was served personally with the notice of motion for orders in default and supporting affidavit, together with a letter bringing notice of the proceeding that commenced on 21 March 2011 to his attention.

10    I am satisfied that there has been due notice of the documents set out above. It seems that it was probably unnecessary to give notice of the notices of motion in the circumstances: British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665.

11    Order 35A rule 3(2)(c) FCR may be invoked upon an event of default of a kind prescribed in O 35A r 2(2) FCR, and contemplates that judgment may be given against a respondent for relief to which the applicant appears entitled "on the statement of claim" and which the Court is satisfied it has "power to grant". In determining the relief, O 35A permits regard to be had to the "face of the statement of claim"; no evidence need be adduced to prove the factual contentions; allegations of fact in the statement of claim are deemed admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 244 ALR 300 at [42]. See also: Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57]; Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [6]-[7] per Jacobson J; Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J; Macquarie Bank Ltd v Seagle (2005) 146 FCR 400. The facts set out under paras 5(b), 6(b), 7(b) and 8(b) above constitute events of default pursuant to O 35A r 2 (2)(b) of the Federal Court Rules.

12    In this case, the judgment now sought is in respect of less causes of action than claimed under the Statement of Claim, and penalty is to be commensurate with penalty to be imposed on respondents who have the assistance of legal representation, and whose circumstances are otherwise indistinguishable. Accordingly, no injustice will be occasioned by entering default judgment had the notices of motion not been served.

Declaratory relief

13    The applicant also seeks declaratory relief as against the Defaulters based on deemed admissions of the facts pleaded in the Amended Statement of Claim.

14    In Dataline (2006) 236 ALR 665 at [57]-[59], Kiefel J observed:

[57]    … The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the Court on the facts and the declarations may give the impression that there has.

[58]    The power to grant declarations (s 21 Federal Court Act 1976 (Cth)) sic is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2).

[59]    It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration … Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct constitutes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made ‘upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court’.

15    Dataline (2006) 236 ALR 665 was followed by Mansfield J in Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) (2007) 240 ALR 120. His Honour noted the previous reluctance to base declarations on admissions, but nonetheless approved and adopted the reasons of Kiefel J in Dataline (2006) 236 ALR 665 and made declarations on the basis of deemed admissions.

16    In Hadgkiss v Aldin & Ors (No 2) at [23], I too granted declaratory relief "predicated by a statement that they are made on the basis of deemed admissions."

17    I am satisfied that there is a proper basis, in each case, for making the relevant declarations, and I will do so.

18    The issue of penalty in each case, if any, will be deferred until the penalty hearing in respect of those other respondents who have admitted liability.

19    I will also reserve the question of costs on the motions to that hearing.

Associate:

Dated:    8 April 2011

SCHEDULE 1

MURRAY ARCARO

Third Respondent

MOSES ASIATA

Fourth Respondent

SERGIO BAEZ

Sixth Respondent

FRANCISCO BARRAZA

Ninth Respondent

ROLAND BAZAEZ

Twelfth Respondent

LEON BECKER

Thirteenth Respondent

PATRICK BIRD

Sixteenth Respondent

TERRANCE BISHOP

Seventeenth Respondent

ROMEO BONCATO

Nineteenth Respondent

DARREN BOXALL

Twentieth Respondent

ROBERT BROWN

Twenty-Fifth Respondent

SLAVO CEKLIC

Twenty-Eighth Respondent

KIM CHENNELL

Twenty-Ninth Respondent

JASON CHROMIAK

Thirty-First Respondent

ROBERT CLARK

Thirty-Second Respondent

DAVID COLLINS

Thirty-Fourth Respondent

DONALD COLYER

Thirty-Fifth Respondent

CHRIS CORRIGAN

Thirty-Seventh Respondent

ALLAN COUTTS

Thirty-Eighth Respondent

LANCE CRONIN

Thirty-Ninth Respondent

ANDREW CROSIER

Fortieth Respondent

RENEE CUMBERS

Forty-First Respondent

KENNETH CUMMING

Forty-Second Respondent

ALASTAIR CUNLIFFE

Forty-Third Respondent

AIDEN DAVEY

Forty-Fifth Respondent

SCOTT DEVINE

Forty-Ninth Respondent

CLAUDE DEVOS

Fiftieth Respondent

JOHN DICKSON

Fifty-First Respondent

NORMAN DODGIN

Fifty-Third Respondent

DANIEL DOYLE

Fifty-Fifth Respondent

MATT DRUMMOND

Fifty-Sixth Respondent

JOHANNES DUPLESSIS

Fifty-Ninth Respondent

WARWICK FAULKNER

Sixty-Fourth Respondent

VICTOR FAUSTINO

Sixty-Fifth Respondent

JOSE FERREIRA

Sixty-Seventh Respondent

GEORGE FITZROY

Seventy-First Respondent

DAVID FRASER

Seventy-Second Respondent

SALVATORE FRONTE

Seventy-Third Respondent

PETER GARDINER

Seventy-Fifth Respondent

LOUIE GEROVICH

Seventy-Eighth Respondent

SIMON GILBERT

Eighty-Second Respondent

TAY GOODALL

Eighty-Third Respondent

DUANE GUYATT

Eighty-Eighth Respondent

JOHN HARVEY

Ninetieth Respondent

QUINTON HEBBARD

Ninety-First Respondent

ROBERT HOLT

Ninety-Fourth Respondent

STEPHEN HONICKE

Ninety-Fifth Respondent

ANDREW HORNBY

Ninety-Sixth Respondent

CHRISTOPHER HOWARD

Ninety-Seventh Respondent

VINCENT HOWES

Ninety-Eighth Respondent

NIKOLA IVKOVIC

One Hundred and Third Respondent

DENIS JACKSON

One Hundred and Fourth Respondent

MARK JOHNSON

One Hundred and Sixth Respondent

RICHARD JONES

One Hundred and Seventh Respondent

RAYMOND JONES

One Hundred and Eighth Respondent

TURIPI KARUTJINDO

One Hundred and Tenth Respondent

EMIN KECAP

One Hundred and Eleventh Respondent

SHAUN KEILY

One Hundred and Twelfth Respondent

LENKO KORLJAN

One Hundred and Thirteenth Respondent

DARRIN LANE

One Hundred and Fifteenth Respondent

SHANE LAVELLE

One Hundred and Sixteenth Respondent

CHRISTINE LEAHY

One Hundred and Seventeenth Respondent

CHARLIE LINESS

One Hundred and Eighteenth Respondent

CLIFFORD LOGAN

One Hundred and Nineteenth Respondent

KENNETH LOGAN

One Hundred and Twentieth Respondent

DONALD MACKAY

One Hundred and Twenty-Third Respondent

JAMES MANN

One Hundred and Twenty-Fourth Respondent

DENIS MARRINER

One Hundred and Twenty-Sixth Respondent

GHEORGHE MATEIU

One Hundred and Twenty-Seventh Respondent

GREGORY MCCARTHY

One Hundred and Thirtieth Respondent

PAUL MCGEADY

One Hundred and Thirty-First Respondent

RUSSELL MCGHIE

One Hundred and Thirty-Second Respondent

JOSEPH MCGRANE

One Hundred and Thirty-Third Respondent

ALASTAIR MCGUIRE

One Hundred and Thirty-Fourth Respondent

ALAN MCKENZIE

One Hundred and Thirty-Fifth Respondent

DEAN MEDLAND

One Hundred and Thirty-Seventh Respondent

BRAD MILLER

One Hundred and Thirty-Eighth Respondent

ROBERT MITCHELL

One Hundred and Fourtieth Respondent

PASKO MITRESKI

One Hundred and Forty-First Respondent

CHRISTOPHER MOORE

One Hundred and Forty-Third Respondent

LEONARD MUDRI

One Hundred and Forty-Fourth Respondent

DARREN NEWBY

One Hundred and Forty-Sixth Respondent

JAMIE NICOLAOU

One Hundred and Forty-Seventh Respondent

JAMES ODIAM

One Hundred and Forty-Eighth Respondent

BRIAN OTTAWAY

One Hundred and Fifty-First Respondent

MANDY-LEE PALMER

One Hundred and Fifty-Second Respondent

KEN PAYNE

One Hundred and Fifty-Fifth Respondent

LOUISE PFITZNER

One Hundred and Fifty-Eighth Respondent

RICHARD PHILLIPS

One Hundred and Fifty-Ninth Respondent

SHEREE PIKE

One Hundred and Sixtieth Respondent

JOE PIZZO

One Hundred and Sixth-Second Respondent

JOHN PRATT

One Hundred and Sixty-Third Respondent

DAVID ROSSITER-MCLAREN

One Hundred and Seventieth Respondent

PHILLIP ROWELL

One Hundred and Seventy-First Respondent

TOM SABINE

One Hundred and Seventy-Third Respondent

MICHAEL SANDERS

One Hundred and Seventy-Fifth Respondent

ANTON SAXER

One Hundred and Seventy-Seventh Respondent

KEITH SHIELD

One Hundred and Eighty-First Respondent

DALE SHIRTLIFF

One Hundred and Eighty-Second Respondent

DUSKO SOBOT

One Hundred and Eighty-Fifth Respondent

GRAEME SOWDEN

One Hundred and Eighty-Seventh Respondent

BRAD SPARK

One Hundred and Eighty-Eighth Respondent

JUSTIN STUURSTRAAT

One Hundred and Ninety-Second Respondent

WAYNE SUTHERLAND

One Hundred and Ninety-Third Respondent

ALLAN TAMAPUA

One Hundred and Ninety-Fourth Respondent

KEN THACH

One Hundred and Ninety-Fifth Respondent

MICHAEL TICEHURST

One Hundred and Ninety-Sixth Respondent

NEIL TOLLISON

One Hundred and Ninety-Seventh Respondent

BRYAN TONKIN

One Hundred and Ninety-Eighth Respondent

JOHN TUIVASA

Two Hundredth Respondent

GREG UCHWAL

Two Hundred and First Respondent

PETER VARIAKOJIS

Two Hundred and Second Respondent

MAREE WAINMAN

Two Hundred and Third Respondent

MITCHELL WEIR

Two Hundred and Fourth Respondent

MICHAEL WRIGHT

Two Hundred and Sixth Respondent

LESLEY YOUNG

Two Hundred and Eighth Respondent

PERO ZUVELA

Two Hundred and Ninth Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Two Hundred and Eighteenth Respondent

BRADLEY UPTON

Two Hundred and Nineteenth Respondent

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION

Two Hundred and Twentieth Respondent

JOHN WINDUS

Two Hundred and Twenty-First Respondent

ANDREW HOLDSWORTH

Two Hundred and Twenty-Second Respondent