FEDERAL COURT OF AUSTRALIA

Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 3) [2011] FCA 912

THE COURT ORDERS THAT:

The Construction, Forestry, Mining and Energy Union file and serve a cross-claim in the terms annexed to the affidavit of Mr Charles Massy sworn 1 July 2011 by 4.00 pm on 19 August 2011.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Substantive proceedings related to the notice of motion before me are currently on foot, in respect of which Lend Lease Project Management & Construction (Australia) Pty Ltd (“Lend Lease”) is the applicant. The named respondents to these proceedings are a number of unions. The Construction, Forestry, Mining and Energy Union (“CFMEU”) is the first respondent. The Australian Building and Construction Commissioner (“ABCC”) is intervening in these proceedings.

2    The CFMEU now seeks orders that it be granted an extension of time in which to file a cross-claim against not only Lend Lease, but against nine sub-contractors engaged by Lend Lease who presently are not otherwise parties to these proceedings.

Background

3    The amended application and amended statement of claim filed on 2 June 2011 by Lend Lease are currently the subject of timetabling directions. In summary, Lend Lease seeks declarations, compensation, the imposition of pecuniary penalties and permanent injunctions against the respondents in respect of alleged contraventions by them of orders of Fair Work Australia, as well as breaches of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) and the Building and Construction Industry Improvement Act 2005 (Cth).

4    The history to these proceedings is explained to some extent in two judgments of this Court: Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 387 and Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 403. So far as is relevant to these proceedings, it is clear that:

    Lend Lease is the principal contractor on two major building projects in south-east Queensland, namely a project to construct the Supreme Court and District Court in Brisbane (“the Law Courts Project”) and a project to construct the Gold Coast University Hospital (“the GCUH Project”).

    Lend Lease has engaged a large number of sub-contractors to assist it in these Projects.

    A large number of workers work on these Projects.

    Workers working on these Projects are members of the relevant unions.

    The sub-contractors have also engaged persons as independent contractors to work on these projects.

    Work on the Law Courts Project and the GCUH Project sites has been the subject of industrial action. Orders restraining unprotected industrial action on these sites have been made by Fair Work Australia.

    Fair Work Australia recognised in February 2011 that sham contracting of employees was an issue underlying industrial action on the sites. “Sham contracting” involves a sub-contractor purporting to engage workers as independent contractors when, in reality, they are employees of the sub-contractor. In such circumstances, the workers may be paid less, and receive fewer entitlements, than employees of the sub-contractor.

5    In the Defence of the first, fourth and fifth respondents filed 1 July 2011 the respondents oppose the application. However in paragraph 8 of the Defence they also admit that the CFMEU was conducting a “stop the sham” campaign to:

    educate and inform workers in the construction industry;

    gather information and data in relation to sham contracting; and

    lobby stakeholders to end sham contracting in the construction industry.

6    The first, fourth and fifth respondents also claim in the Defence that the CFMEU received reports from workers about sham contracting arrangements occurring at both the Law Courts Project site and the GCUH Project Site.

The notice of motion

7    The CFMEU has sought orders pursuant to the Federal Court Rules as those Rules were prior to 1 August 2011. All references to the Federal Court Rules in this judgment are to the Rules as they existed prior to that date.

8    Pursuant to a notice of motion filed 1 July 2011, the CFMEU sought an order in accordance with O 5 r 9(2) of the Federal Court Rules that it be granted leave to file and serve a cross-claim. Order 5 rule 9 provides:

(1)    A respondent desiring to cross-claim after the directions hearing shall obtain all necessary directions at the directions hearing in relation to the cross-claim, including the time within which the cross-claim is to be filed.

(2)    A respondent who does not obtain directions pursuant to sub-rule (1) shall not cross-claim after the directions hearing without the leave of the Court.

9    However in submissions filed on 26 July 2011 the CFMEU submitted that, in fact, it was entitled to file a cross-claim against Lend Lease pursuant to O 5 r 1(1) of the Federal Court Rules, as well as cross-claims against the other cross-respondents identified in the draft cross-claim pursuant to O 5 r 1(2). In summary, the CFMEU submits that its current interlocutory application is properly characterised as an interlocutory application for an extension of time to file a cross-claim pursuant to O 5 r 5(1), rather than an application for leave.

10    Further, the CFMEU submits that the cross-claim against the second to tenth cross-respondents is related to or connected with its claims against Lend Lease, and therefore satisfies O5 r 1(2).

11    The CFMEU submits that it has satisfied the criteria for grant of an extension of time.

12    Lend Lease opposes the order sought by the CFMEU, although it does not take issue with the fact that the order sought by the CFMEU at the hearing had in fact superseded the order originally sought by the CFMEU in its notice of motion.

13    It appears that none of the other named cross-respondents have been served with the process. Certainly none of them entered an appearance at the hearing of the notice of motion or filed any material with the Court.

14    Lend Lease disputes all of the submissions of the CFMEU. Further, at the hearing, Mr Kimber SC for Lend Lease submitted in summary that, irrespective how the proceedings were categorised:

    the Court ought not permit the cross-claim go forward; and

    in any event, any cross-claims by the CFMEU should be considered separately.

The draft cross-claim

15    The order sought by the CFMEU for an extension of time in which to file a cross-claim, and the submissions of the parties, are more clearly understood when one has regard to the second further affidavit of Mr Charles Massy, the solicitor for the CFMEU, sworn 1 July 2011 and filed in support of the notice of motion. In particular, Mr Massy deposes that:

    he has been instructed by the CFMEU to file a cross-claim against the applicant and other sub-contractors engaged by the applicant;

    the cross-claim seeks declarations and the imposition of pecuniary penalties against the applicant and other parties for contraventions of s 357 of the Fair Work Act as they relate to the Gold Coast University Hospital site during the period which is in dispute in this matter; and

    the relief being sought in the cross-claim is related to and connected with the factual dispute in the substantive proceedings.

16    A copy of the CFMEU’s draft cross-claim is annexed to Mr Massy’s affidavit. It is quite lengthy, being 20 pages. The CFMEU is named the cross-claimant, whereas the other two unions are not named as parties other than by reference to the substantive proceedings. Ten cross-respondents are however named, specifically:

1.    Lend Lease

2.    Priest & Co Bricklayer Pty Ltd

3.    Zashvelle Pty Ltd t/a M&M Waterproofing

4.    CCF Pty Ltd t/a Commercial Contract Fixing

5.    Commercial Aluminium Cladding Pty Ltd

6.    Mewcastle Pty Ltd

7.    Gay Constructions Pty Ltd

8.    Sarri Bros Pty Ltd t/a Sarcon

9.    Brisbane Bricklaying Pty Ltd t/a Brisbane Brick & Block

10.    Wilson Pacific Pty Ltd

17    The cross-claim extensively details alleged incidents of sham contracting by the second to tenth cross-respondents. The CFMEU proposes declarations that the second to tenth cross-respondents have contravened s 357 of the Fair Work Act, declarations that Lend Lease was a person associated with those contraventions, and pecuniary penalties.

Principles guiding the exercise of the Court’s discretion in respect of extending time

18    Order 5 rule 5(1) of the Federal Court Rules fixed the time limit for filing a cross-claim, and contemplated that the respondent could seek an extension of time in which to do so. It is not in dispute that the CFMEU is out of time in which to file a cross-claim within the terms of Order 5. Principles relevant to the exercise of the Court’s discretion in respect of an application out of time for an extension of time in which to file process are found in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. In summary:

    the Court should have regard to whether the applicant for extension has shown an acceptable explanation of the delay in filing the process.

    any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

    the merits of the application are properly to be taken into account in considering whether an extension of time should be granted.

1. Explanation for delay

19    In this case the CFMEU submitted that it had originally understood that leave was necessary under O 5 r 9 of the Federal Court Rules because the wording of O 5 r 7 in the authorised version of the Federal Court Rules published on the ComLaw website (www.comlaw.gov.au ) was wrong – specifically, that the word “apply” which should have been in the rule was missing from the version published on ComLaw.

20    Indeed, it is apparent from an inspection of the ComLaw website that the word “apply” was, inexplicably, missing from O 5 r 7. Helpful research undertaken by the Federal Court Librarians in Brisbane indicates that O 5 r 7, as made in 1979 and enacted with the Federal Court Rules as Statutory Rules 1979 No 140, commenced:

Rules 8 and 9 apply where a proceeding…

In the reprint of the Federal Court Rules as at 30 April 1991 however, the word “apply” had dropped out despite no steps having been taken to delete the word. It appears that the incorrect wording was adopted by ComLaw when the authorised version of the Federal Court Rules went online.

21    The CFMEU submits that, because of the incorrect wording in O 5 r 7, its legal advisers were confused in respect of the issue whether leave was required under O 5 r 9 in the present circumstances, and that this was the reason for the delay in seeking an extension of time.

22    This explanation for delay in filing the cross-claim is not challenged by Lend Lease. In the absence of dispute, I am prepared to accept it, although I note that commercial publishers of annotated versions of the Federal Court Rules did not share the confusion of the solicitors for the CFMEU and quite reasonably included the word “apply” in O 5 r 7 (without which word O 5 r 7 made questionable sense).

2. Prejudice

23    Mr Kimber SC for Lend Lease conceded at the hearing that Lend Lease has not experienced any prejudice arising from the delay in filing the cross-claim (transcript p 18 ll 15-18).

3. Merit

24    A decision concerning the merit of the proposed cross-claim is to be made by reference to whether the CFMEU is entitled, in the circumstances, to file a cross-claim against Lend Lease and the other nine cross-respondents pursuant to O 5 r 1 of the Federal Court Rules. I agree with the submission of Mr Friend SC for the CFMEU that it is not the role of the Court at this stage to make any final determination as to whether a cross-claim is supported by O 5 r 1 – this is an issue which could be the subject of a future strike-out application by those parties if the CFMEU were successful in respect of this notice of motion.

25    Relevantly, O 5 r 1 of the Federal Court Rules provided:

(1)    A respondent may cross-claim against an applicant for any relief to which the respondent would be entitled against the applicant if the applicant were a respondent in a separate proceeding commenced in the Court by the respondent for that purpose.

(2)    A respondent may cross-claim against any person whether another party or a third party for any relief which is related to or connected with the subject of the proceeding.

(3)    Without prejudice to the generality of sub-rule (2), a respondent may cross-claim for contribution or indemnity.

26    This rule complemented s 22 of the Federal Court Act 1976 (Cth), which provides:

Determination of matter completely and finally

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

Merit of cross-claim against Lend Lease

27    In this case I consider that the submission of the CFMEU that it is entitled to cross-claim against Lend Lease in the terms found in the draft cross-claim has merit.

28    At the hearing Mr Kimber SC for Lend Lease submitted that even if the CFMEU had cross-claimed in this case within time, the CFMEU would still face a strike-out application on the basis that it was not a cross-claim under the Federal Court Rules, because the claim was not one where the relief sought was related to or connected with the subject of the proceeding. In my view however this submission misconstrues the operation of O 5 r 1(1) and (2). A plain reading of these sub-rules demonstrates that:

    Order 5 rule 1(1) applies in respect of cross-claims against the applicant only. Subject to time constraints, and the necessity that relief sought be such that the respondent would be entitled to it against the applicant if the applicant were a respondent in a separate proceeding commenced in the Court by the respondent for that purpose, the respondent is entitled to file a cross-claim.

    There is no reason why O 5 r 1(1) needs be read with O 5 r 1(2) as essentially submitted by Lend Lease.

    Order 5 rule 1(2) clearly applies to “any person whether another party or a third party”. In my view “any person” in this context does not include the applicant, who is specifically the subject of O 5 r 1(1).

    Accordingly, it follows that there is merit in the argument that while relief claimed by cross-claim against third parties must be “related to or connected with the subject” of the primary proceeding, such qualification does not apply in respect of a cross-claim against the applicant.

29    The relief contemplated by the draft cross-claim is such that the CFMEU could claim against Lend Lease were Lend Lease a respondent in a separate proceeding commenced in the Court by the CFMEU for that purpose, and it is therefore arguable that the CFMEU can file a cross-claim against Lend Lease pursuant to O 5 r 1(1). Indeed, to some extent this is conceded by Lend Lease in its submission that, regardless of the approach taken by the Court to the notice of motion, the cross-claim should be heard separately (transcript p 3 ll 10-16).

30    Mr Kimber SC also submitted that the prospects of success of the CFMEU against Lend Lease were not good, because proving knowing involvement of Lend Lease in respect of the alleged contraventions of the Fair Work Act pursuant to s 550(2) will be very difficult. However it would be premature in the extreme to find that the CFMEU’s prospects of success against Lend Lease in respect of its proposed cross-claim are extremely poor, as submitted by Lend Lease. I take this view particularly in light of the significant detail evident in the draft cross-claim. At this stage the draft cross-claim does not appear fanciful or without merit, such as to warrant a refusal of an order to extend time in which to file.

Merit of cross-claim against second to tenth cross-respondents

31    The more difficult question however is whether there is merit in the CFMEU’s claim that it is entitled to file and serve a cross-claim against the second to tenth cross-respondents, who are not otherwise parties to the proceedings before the Court, and therefore can only be the subject of a cross-claim because the relief sought against them is related to or connected with the subject of the proceeding within the meaning of O 5 r 1(2).

32    Mr Friend SC submitted that the relief proposed by the draft cross-claim is related to or connected with the subject of the proceeding because, in summary:

    Paragraph 8 of the Defence squarely raises the issue of sham contracting in a manner responsive to Lend Lease’s Amended statement of claim.

    The draft cross-claim itself identifies a number of allegations in respect of sham contracting and contraventions of the Fair Work Act.

    The Defence includes admissions that the employees were involved in industrial action but, as against Lend Lease, denies that the CFMEU was involved in organising or promoting such industrial action and states that the employees themselves determined to take the action because of the existence of sham contracting and their strong feelings about it.

    If Lend Lease were to succeed and the Court was considering a penalty against the respondents on the basis that the respondents had been involved in organising or taking part in industrial action, the motivation for such industrial action would be a relevant point.

    So far as concerns O 5 r 1(2), the relief sought against the second to tenth respondents need not be sufficiently connected with the existing claim, it only needs to be sufficiently connected to the cross-claim against Lend Lease.

    The role of the Court is to resolve the issues in dispute between the parties insofar as possible in one proceeding if it can. If the Court declines to exercise its discretion to grant an extension of time, the CFMEU will almost certainly commence separate proceedings, and will apply for those proceedings to be heard with the claim of Lend Lease.

33    In contrast, Mr Kimber SC for Lend Lease submitted, in summary, that:

    The fact that the other cross-respondents had not been served, and therefore were not able to present their respective positions to the Court, militated against the exercise of the discretion of the Court to grant an extension of time.

    There is no relevant overlap between the relief sought by the CFMEU in its proposed cross-claim, and the subject of the substantive proceedings. The issues raised in the cross-claim are discrete issues – the Court does not need to determine whether or not there was sham contracting as a matter of fact to decide the substantive claim of Lend Lease.

    The connection between the relief sought by the cross-claim and the subject of the substantive proceedings must be real, not theoretical and peripheral.

    The prospects of success against the second to tenth cross-respondents are questionable, similarly to the poor prospects of success against Lend Lease.

34    Mr Kimber SC also directed my attention to the decision of French J in Martech International Pty Ltd v Energy World Corporation Ltd [2004] FCA 1470, in particular at [28] and [29] where his Honour observed as follows:

28 The requirement that the relief sought in a cross-claim against a non-party to the principal proceedings, be related to, or connected with, the subject of the proceedings is to be construed in the light of the powers conferred upon the Court by s 22 of the Federal Court Act 1976 (Cth) and the policy underlying that grant that ‘... as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided’.

29 The objective of the requirement that a cross-claim involving a non-party cross-respondent be related to, or connected with, the subject matter of the proceedings is to allow, so far as possible, all aspects of a matter or controversy before the Court to be resolved. The rule does not authorise the joinder in one proceeding of another where the only common factor between them is that the respondent in the first proceeding is the cross-claimant in the second. The words of the rule do not authorise such a cross-claim nor does its policy. The management of cases before the Court would become difficult, if not impossible, if parties could tack on claims against other parties raising different factual and legal issues. The question of what amounts to a sufficient relationship to or connection with the principal proceedings for the purposes of O 5 r 1(2) involves an evaluative judgment of a practical nature having regard to the proper management of the case and the policy of the rule and of s 22 of the Federal Court Act. Where a cross-claim raises a dispute factually discrete and distinct in time from the matter which is the subject of the principal proceedings, and there is a third party involved, the mere existence of the nominal connection between the common parties and even perhaps some degree of factual similarity in the disputes between them, may not be sufficient to characterise the relief claimed in the cross-claim as ‘related to or connected with’ the subject matter of the principal proceeding.

(emphasis added)

35    Taking into account the principles explained by French J in Martech, and the submissions of the parties, I make the following observations.

36    First, I do not accept the submission of Mr Friend SC that the relief sought against the second to tenth cross-respondents need not be sufficiently connected with the existing claim brought by Lend Lease and that it only needs to be sufficiently connected to the cross-claim against Lend Lease (transcript p 9 ll 28-30). In my view this echoes the circumstances against which French J warned in Martech, and would endorse totally unrelated claims where the only common factor was the identity of the cross-claimant. This is particularly so in light of the fact that O 5 r 1(1) permits a respondent to cross-claim in respect of matters unrelated to the substantive proceedings. Order 5 rule 1(2) is clear – a respondent may cross-claim against any person whether another party or a third party for any relief which is related to or connected with the subject of the proceeding. I interpret this to mean related to the substantive proceedings – not merely related to any relief sought by the respondent against the applicant.

37    Accordingly, it follows that the key question is whether there is merit to the claim that proposed cross-claims against the second to tenth cross-respondents are related to or connected with the subject of the proceeding commenced by Lend Lease, to which I now turn. For the purposes only of the notice of motion before me and the question whether the CFMEU should be granted an extension of time in which to file and serve the cross-claim, I am prepared to find there is merit in the CFMEU’s case because

    While not significantly overlapping, nonetheless sham contracting is an issue in the substantive proceedings, raised in paragraph 8 of the Defence. I consider it arguable that the connection between the relief sought by the CFMEU in the cross-claim and the subject of the substantive proceedings is more than merely peripheral.

    I accept the submission of Mr Friend SC that the issue of sham contracting is potentially relevant in any pecuniary penalty determination in the context of the primary proceedings.

    In light of the detailed terms of the draft cross-claim, I am not prepared to find other than, at this stage, that the CFMEU would have reasonable prospects of success against the second to tenth cross-respondents; and

    Sham contracting is an issue which should be the subject of determination in these proceedings in light of the policy articulated in s 22 of the Federal Court Act.

38    Notwithstanding these findings however, I am also persuaded by Mr Kimber SC’s submissions concerning the unsuitability of hearing the substantive proceedings and the cross-claim together. As French J also said in Martech:

30 It must be acknowledged of course that the Rules appear to allow for a cross-claim on a discrete and unconnected issue to be raised by a respondent against an applicant where no third party is involved. But even in that case, the Court has a discretion to direct that the cross-claim be tried separately. The exercise of that discretion is a matter of case management informed by essentially practical judgments.

39    In this case it appears that:

    While related, the specific issues the subject of the cross-claim could properly be heard and determined separately from the substantive proceedings commenced by Lend Lease.

    The cross-claim may involve 33 witnesses being called and cross-examined, as well as the various sub-contractors giving evidence. This is likely to result in a considerable extension of time required for trial if heard with the substantive proceedings.

    The timetabling for the substantive proceedings would require considerable reworking should the cross-claim be heard with it.

    Importantly – should the matters be heard together the second to tenth cross-respondents would be compelled to spend the time and incur the substantial costs associated with participating in a lengthy hearing where a significant part of Court time would be spent on issues of no relevance to them.

40    In summary, I consider that case management difficulties may arise, with ensuing delay of the hearing and determination of the substantive proceedings, if the cross-claim proceeds in tandem with those proceedings. In my view the better approach is to allow the CFMEU an extension of time in which to file and serve the draft cross-claim, and to list the matter for further timetabling directions, including further consideration of whether a separate trial should be ordered, once all relevant parties have been served and have the opportunity to consider their positions.

Associate:

Dated:    11 August 2011