FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction,

Forestry, Mining & Energy Union [2011] FCA 1040

THE COURT ORDERS THAT:

1.    The Notice of Motion for contempt dated 20 July 2011 (the Motion for Contempt) be heard and determined together with the following proceedings:

(a)    Proceeding No. WAD 266 of 2011, wherein the applicant is the applicant in this proceeding (ABCC) and the first respondent is the second respondent in this proceeding (McDonald) and the second respondent is the first respondent in this proceeding (CFMEU) (Proceeding No. WAD 266 of 2011); and

(b)    Proceeding No. WAD 306 of 2011, wherein the applicant is the ABCC and the respondents are Inner Strength Steel Fixing Pty Ltd and Vishuddha Shane Sacha (the Inner Strength proceeding).

2.    The evidence in this proceeding be evidence in the above proceeding.

3.    On or before 14 September 2011, the respondents to the Motion for Contempt file and serve their responses to the applicant’s Statement of Charge dated 20 July 2011.

4.    The Motion for Contempt be referred to mediation, such mediation to be conducted contemporaneously as the mediation in Proceeding No. WAD 266 of 2011, which is fixed to be conducted before a Registrar on 13 October 2011.

5.    The Motion for Contempt be otherwise adjourned for further directions on a date after 13 October 2011, such date to be at the same date and time as the next directions hearing in Proceeding No. WAD 266 of 2011 and the Inner Strength proceeding.

6.    Costs reserved.

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

THE COURT ORDERS THAT:

1.    The Application in this proceeding be heard and determined together with the following proceedings:

(a)    The Notice of Motion for contempt dated 20 July 2011 and filed in Proceeding No. WAD 106 of 2009 (the Motion for Contempt), wherein the applicant is the applicant in the Motion for Contempt (ABCC) and the first respondent is the second respondent in this proceeding (CFMEU) and the second respondent is the first respondent in this proceeding (McDonald); and

(b)    Proceeding No. WAD 306 of 2011, wherein the applicant is the ABCC and the respondents are Inner Strength Steel Fixing Pty Ltd and Vishuddha Shane Sacha (the Inner Strength proceeding).

2.    The evidence in this proceeding be evidence in the above proceedings.

3.    The mediation of this proceeding which is fixed to be conducted before a Registrar on 13 October 2011 be conducted contemporaneously with a mediation of the Motion for Contempt before the same Registrar.

4.    The directions hearing to be fixed pursuant to paragraph 6 of the Orders of Gilmour J made 20 July 2011 be fixed at the same date and time as the next directions hearing for the Motion for Contempt and the Inner Strength proceeding.

5.    Costs reserved.

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

THE COURT ORDERS THAT:

1.    The Application in this proceeding be heard and determined together with the following proceedings:

(a)    Proceeding No. WAD 266 of 2011, wherein the applicant is the applicant in this proceeding (ABCC) and the first respondent is Joseph McDonald (McDonald) and the second respondent is the Construction, Forestry, Mining and Energy Union (CFMEU) (Proceeding No. WAD 266 of 2011); and

(b)    The Notice of Motion for contempt dated 20 July 2011 filed in Proceeding No. WAD 106 of 2009 (the Motion for Contempt), wherein the applicant is the ABCC and the respondents are the CFMEU and McDonald.

2.    The evidence in this proceeding be evidence in the above proceedings.

3.    On or before 12 September 2011, the Respondents file and serve their Defences to the Statement of Claim.

4.    On or before 26 September 2011, the Applicant file and serve any Reply.

5.    The proceeding be referred for mediation before a Registrar of the Court, such mediation to be conducted contemporaneously as the mediation of the Motion for Contempt, and contemporaneously with Proceeding No. WAD 266 of 2011, which is fixed to be conducted before a registrar on 13 October 2011.

6.    The proceeding be otherwise listed for directions on a date after 14 October 2011, such date and time to be the same as the next directions hearing in Proceeding No. WAD 266 of 2011 and the Motion for Contempt.

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

REASONS FOR JUDGMENT

1    I made orders on 12 August 2011 for these three proceedings to be heard together and that evidence in each proceeding be evidence in each of the other proceedings. These are my reasons for so ordering.

Introduction

2    Much of the following introduction is taken from the written submissions of the applicant (ABCC) in each proceeding and is not contentious.

3    On 5 July 2011, the ABCC in proceeding No WAD 266 of 2011 commenced proceedings against the First Respondent (McDonald) and the Second Respondent (CFMEU). The proceeding, amongst other things, sought penalties for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) (Proceeding No. WAD 266 of 2011). The contraventions involve the following:

(a)    a s 38 contravention for unlawful industrial action on 2 February 2011;

(b)    a s 38 contravention for unlawful industrial action on 10 June 2011;

(c)    contraventions of s 44 between the period 10 June 2011 and 4 July 2011.

4    In proceeding No WAD 106 of 2009, the ABCC on 20 July 2011 filed a Notice of Motion for Contempt against the CFMEU and McDonald (the Motion for Contempt). The allegations of contempt relate to the same events of 2 February 2011 and 10 June 2011. I will refer in these reasons to proceedings WAD 266 of 2011 and WAD 106 of 2009 as “the Union proceedings”.

5    On 20 July 2011 in proceeding No WAD 306 of 2011, the ABCC filed an Application and Statement of Claim against Inner Strength Steel Fixing Pty Ltd (Inner Strength) and Vishuddha Shane Sacha (Sacha) (the Inner Strength proceeding). This proceeding alleges various contraventions of the sham contracting provisions pursuant to ss 900, 901 and 902 of the Workplace Relations Act 1996 (Cth) (WR Act) and ss 357 and 358 of the Fair Work Act 2009 (Cth) (FW Act).

6    In each of the above proceedings, in accordance with the Minutes of Proposed Orders of the ABCC, orders are sought that Proceeding No WAD 266 of 2011, the Motion for Contempt and the Inner Strength proceeding be heard and determined together as well as consequential orders.

7    The application was supported by an affidavit of Matthew James Kelleher sworn 8 August 2011.

8    The ABCC seeks the above orders pursuant to Rule 30.11 of the Federal Court Rules 2011 (Cth), which relevantly provides:

If several proceedings are pending in the Court and the proceedings:

(a)    involve some common question of law or fact; or

(b)    are the subject of claims arising out of the same transaction or series of transactions;

any party to any of the proceedings may apply to the Court for an order that the proceedings be:

(c)    . . .

(d)    heard together;

(e)    . . .

(f)    . . .

9    In Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110, Austin J at [27] summarises the overarching guiding principles to such applications in these terms:

... the court’s essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the court. (Emphasis added)

10    The ABCC also relies upon s 37M of the Federal Court of Australia Act 1976 (Cth).

11    Each of the CFMEU and McDonald oppose the orders sought. However, there was an acceptance that the Union proceedings might be heard together but they contend that it would be preferable for the Inner Strength proceeding to be determined first with the Union proceedings being tried later. Alternatively, they submitted that the issue of the status of the Inner Strength workers as contractors or employees be tried as a preliminary issue. They do however concede that there is a common contextual background to the three proceedings.

Should proceeding No WAD 266 of 2011 be heard together with the Motion for Contempt?

12    Central issues of fact in both Proceeding No WAD 266 of 2011 and the Motion for Contempt concern the conduct of McDonald and the CFMEU at the Queens Riverside Apartments site (the Riverside Site) on 2 February 2011 and 10 June 2011. In Proceeding No WAD 266 of 2011, the conduct on both these days is said to constitute unlawful industrial action in contravention of s 38 of the BCII Act. In the Motion for Contempt the question is whether their conduct on both of these days constituted a contempt of the Orders of the Court made on 23 December 2009 in proceeding No WAD 106 of 2009.

13    As set out in the ABCC’s Statement of Charge against the CFMEU and McDonald dated 20 July 2011 at [41]-[43], the ABCC will also rely upon the conduct of McDonald and the CFMEU between 10 June 2011 until 4 July 2011 to demonstrate the underlying industrial motives of McDonald and the CFMEU in engaging in or being involved in the industrial action that occurred on 10 June 2011 at the Riverside Site. These allegations overlap with the allegations of contraventions of s 44 of the BCII Act between the period 10 June 2011 to 4 July 2011 in Proceeding No WAD 266 of 2011.

14    By reason of the matters above, these two proceedings will involve:

(a)    common questions of law or fact; and

(b)    claims arising out of the same transactions or series of transactions.

15    Further, in both these proceedings, the parties are identical.

16    There is the risk that if each of these proceedings is tried separately, inconsistent findings of fact or law may be made by the Court. This would not be in the interests of justice: Ghose v CX Reinsurance at [26] (Austin J), citing Cousins v Cousins (1948) 51 WALR 57 at 60.

17    Further, if both proceedings were heard separately by the same trial judge, there is the risk that upon one proceeding being determined by the trial judge in a particular manner, a party may seek that trial judge to disqualify themself from hearing the following case in view of the findings made in the earlier proceeding.

18    By reason of the matters above, in the exercise of the Court’s discretion, I consider that it is appropriate for both these proceedings to be heard together.

Should the Inner Strength proceeding be heard together with the Union proceedings?

19    The central issue in the Inner Strength proceeding is as to the status of the workers who were in attendance on 2 February 2011 at the Riverside Site and who stopped work on that day (the Inner Strength workers). It is contended in the Inner Strength proceeding that, although these Inner Strength workers were engaged by Inner Strength as independent contractors, this was a sham arrangement and that in truth the Inner Strength workers in attendance on 2 February 2011 were employees.

20    If they are held to be employees, the ABCC also says that the conduct of McDonald and the CFMEU in organising Inner Strength workers in attendance at the Riverside Site on 2 February 2011 to stop work constituted both:

(a)    a contempt of Court; and

(b)    a contravention of s 38 of the BCII Act.

21    Accordingly, the determination of the status of the Inner Strength workers is critical to the determination of the contempt allegation and the s 38 of the BCII Act allegation concerning the unlawful industrial action on 2 February 2011. It is a central issue common to all three proceedings.

22    Were the Inner Strength proceeding to be tried separately from the Union proceedings the four employees would be required to give evidence twice. Again in order to avoid the risk of inconsistent findings on this question, I find that it is appropriate that the Inner Strength proceeding also be heard and determined with the Union proceedings. This will also employ the resources of the Court most expeditiously and cost effectively. This will, in the same way benefit the parties and avoid inconvenience to the four Inner Strength workers who will be required to give evidence only once.

23    Further, as the ABCC submits, if the Inner Strength proceeding was heard separately by the same trial judge who was to hear the other two proceedings, there is a risk of a party making an application that the trial judge not hear any subsequent proceedings on the ground of apprehension of bias in the event a finding has been made which would be adverse to a party in a subsequent proceeding.

24    Counsel for the CFMEU submits that the argument may also work the other way. She put it this way:

… if you have the one trial judge hearing all of these matters, if they form an adverse view as to the credibility of certain individuals – and I take Mr McDonald as an example, because he is named as respondent in the proceedings. And my client’s liability is contingent upon findings of this court in respect of Mr McDonald’s conduct, as well as the conduct of others. We would say that the one judge hearing the matter may, in the circumstances, make a decision about credibility in one action that will then infect the decision in the other, whereas separate hearings would ensure there is less likelihood of that, including if there isn’t an order that the evidence in one proceeding stand as evidence in the other.

25    I do not agree. Mr McDonald is involved in the Union proceedings but not the Inner Strength proceeding. The Union proceedings have a very large factual overlap. It is highly desirable that one judge hear the common evidence going to the Union proceedings. Findings made in the Union proceedings will not “infect” the Inner Strength proceeding.

26    The ABCC acknowledges that a number of the issues concerning the Union proceedings would not concern the respondents in the Inner Strength proceeding. There is a legitimate concern that the respondents in that case might unnecessarily have to attend Court in respect of matters that did not concern them. This concern may be met by appropriate programming as to how the trial is to be conducted and when certain witnesses are to be called. The respondents in the Inner Strength proceeding do not oppose the orders sought by the ABCC.

27    There is no substance to the submission put on behalf of the CFMEU that its ability to cross-examine would somehow be fettered by the orders sought. The CFMEU will be entitled to cross-examine any witness called constrained only by relevance to the issues in the Union proceedings. The status of the four Inner Strength workers is an issue in those proceedings.

28    I am satisfied that it would be appropriate for the Inner Strength proceeding also to be heard with the Union proceedings. There will be orders accordingly.

Associate:

Dated:    7 September 2011