FEDERAL COURT OF AUSTRALIA

Director, Fair Work Building Industry Inspectorate v Bolton (No 1) [2016] FCA 816

ORDERS

THE COURT ORDERS THAT:

Leave to file the interlocutory application of the Construction, Forestry, Mining and Energy Union dated 31 May 2016 in SAD 59 of 2015, SAD 60 of 2015 and SAD 61 of 2015 be refused.

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

ORDERS

THE COURT ORDERS THAT:

Leave to file the interlocutory application of the Construction, Forestry, Mining and Energy Union dated 31 May 2016 in SAD 59 of 2015, SAD 60 of 2015 and SAD 61 of 2015 be refused.

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

ORDERS

THE COURT ORDERS THAT:

Leave to file the interlocutory application of the Construction, Forestry, Mining and Energy Union dated 31 May 2016 in SAD 59 of 2015, SAD 60 of 2015 and SAD 61 of 2015 be refused.

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

REASONS FOR JUDGMENT

COLLIER J:

1    In November last year I heard the parties in respect of three separate proceedings – SAD 59 of 2015, SAD 60 of 2015 and SAD 61 of 2015. In each case the Director of the Fair Work Building Industry Inspectorate (the Director) sought declarations and penalties in respect of provisions of the Fair Work Act 2009 (Cth) (the FW Act) which had been breached, and agreement had been reached by the parties in a Statement of Facts.

2    After judgment had been reserved, the High Court handed down its decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46. In light of that decision I made timetabling orders requiring the parties to file submissions as to range of penalties in each case. To accord with the circumstances of the legal representatives of the parties I permitted final submissions to be filed in respect of penalties on 25 March 2016.

3    On 31 May 2016 the Construction, Forestry, Mining and Energy Union (CFMEU), being a respondent in each of the proceedings, sought to file an interlocutory application seeking the following orders:

1.    That SAD 59 and 60 and 61 of 2015 (“the matters”) be listed for further directions on a date to be determined by the Court not before 10 June 2016 concerning the hearing of the CFMEU’s interlocutory application as set out hereunder and the filing of written submissions.

2.    That the question of whether the CFMEU has contravened section 500 of the Fair Work Act 2009 (Cth) by reason of the conduct and state of mind of the individual respondents in the matters be tried separately from the matters concerning the individual respondents and consequential orders.

3.    That the CFMEU be granted leave pursuant to Rule 26.11 to withdraw the purported admissions made by the CFMEU concerning its alleged contravention of section 500 of the Fair Work Act 2009 (Cth) and such orders as to amendment of the pleadings as may be required.

4.    Such further or other orders or directions as the Court may determine.

4    In support of this interlocutory application the CFMEU filed an affidavit sworn by Mr Michael Ats, the lawyer for the CFMEU, dated 31 May 2016.

5    On 2 June 2016 I ordered that the interlocutory application not be accepted for filing without the leave of the Court, and made further programming orders for the filing of submissions in respect of whether leave ought be granted. I also ordered that the question of leave be determined by the Court on the papers. Judgment in respect of the substantive proceedings continued to be reserved.

SUPPORTING AFFIDAVIT

6    In his affidavit Mr Ats deposed, in summary:

    On 16 May 2016 he received a copy of the Court’s judgment in Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525.

    Paragraph 48 of Robinson provides as follows:

Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.

    As a result of a decision in Robinson a significant point of statutory construction concerning matters relevant to SAD 59, SAD 60 and SAD 61 has come to light.

    He had not earlier considered the point raised in Robinson, or whether the matters provided for by s 793 of the FW Act could not assist to prove all factual elements required to comprise a contravention of s 500. Nor did he consider that because only officials of registered organisations may be issued entry permits pursuant to s 512, and because there is no provision for entry permits to be issued to registered organisations such as the CFMEU as distinct from their officials, the CFMEU cannot contravene s 500 of the FW Act (other than by being involved in a contravention by virtue of s 550 of the FW Act).

    The CFMEU would be prejudiced if the Court proceeded on the basis of the admissions purportedly made by the CFMEU concerning a contravention of s 500, and imposed pecuniary penalties.

    The issues sought to be advanced in these submissions were overlooked by the CFMEU’s representatives.

SUBMISSIONS OF THE CFMEU

7    In support of its interlocutory application, generally the CFMEU submitted as follows:

    Although the CFMEU purported to admit in each matter that it contravened s 500 of the FW Act, those purported admissions were not admissions of factual matters capable of supporting a contravention by the CFMEU of s 500 of the FW Act.

    It seeks leave pursuant to r 26.11 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) to withdraw admissions made in error and as a result of the failure of the CFMEU lawyers to properly construe the relevant statutory provisions which have been the subject of further consideration by the Court since the hearing.

    The CFMEU is not and cannot be a permit holder, which is an essential element of s 500.

    The Court in Adelaide Steamship Co Ltd v Spalvins [1999] FCA 781 referred to the statement of Kirby J in Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 164-5 to the effect that the Court ought correct errors if correction can be done without injustice to the other party.

    the proposed interlocutory application is not frivolous or vexatious, nor would it amount to an abuse of process in the sense described in Pickering, in the matter of Pickering [2009] FCA 809.

    It does not amount to an abuse of process to seek to raise these issues prior to final judgment in this matter.

    Case flow management should not preclude the interest of the CFMEU as a party to the litigation in properly presenting its defence.

    the parties proceeded on an erroneous construction of s 793, namely that s 793 itself fixed on the CFMEU liability for the contraventions of its officials. That it is erroneous is clear from the decision in Robinson.

    Section 793 does not, on an ordinary reading of its terms, impute to the CFMEU that it is the holder of a permit.

    A judgment on admissions is given only where a clear and unanswerable case is made out: Worldwide Timber Trades Pty Ltd v Brouwer (No 2) [2009] FCA 447. The proper construction of s 793 means that, as a matter of law, the CFMEU did not contravene s 500 of the FW Act, and therefore there was no liability for a contravention.

    In the alternative, leave is sought to withdraw the relevant admissions and advance the alternative statutory construction outlined.

    Principles to be applied where an admission has been made as the consequence of a mistake are well settled. Overall, it is a matter of discretion for the Court, with the primary issues being to ensure a fair trial and the interests of justice.

    The purported admissions were a mistake of law, brought to the Court’s attention when identified.

    No injustice would be occasioned to the Director by the withdrawal of the purported admission.

    The Director cannot make out against the CFMEU the necessary elements of a s 500 contravention. The CFMEU would seek to strike out the pleading by the Director of a contravention by the CFMEU of s 500 of the FW Act, or alternatively seek dismissal of the application so far as it seeks remedies against the CFMEU.

8    The CFMEU also made specific submissions in respect of the pleadings and statement of agreed facts in each matter, in summary as follows:

    in relation to SAD 61 of 2015:

○    while the originating application referred to s 550, the statement of claim and the statement of agreed facts rely only on s 793 of the FW Act. No admission was made by the CFMEU concerning a contravention of s 550(2) of the FW Act;

○    the statement of claim pleads, inter alia, that Mr McDermott was an employee, officer and agent and therefore an official of the CFMEU (paragraph 2.1), acting within the scope of his actual or apparent authority (paragraph 2.2), and the holder of an entry permit for the purposes of s 512 of the FW Act (paragraph 2.3);

○    at paragraph 15 the statement of claim pleads that, by reason of matters pleaded in paragraphs 2.1 and 2.2, the CFMEU is taken by operation of s 793 to have engaged in the conduct of Mr McDermott;

○    paragraph 17 of the statement of claim pleads that, by reason of pleadings in paragraphs 2 and 8-16 of the statement of claim the CFMEU contravened s 500 of the FW Act;

○    the CFMEU’s defence does not plead to paragraph 15 of the statement of claim. The defence admits the allegations in paragraph 17 on the basis of admissions outlined in the defence. That is not an admission of any factual matter which would support a finding of a contravention by the CFMEU with respect to the pleaded case;

○    the agreement of the parties as to the contravention by the CFMEU of s 500 cannot bind the Court;

○    the agreed facts reflect a misconstruction by the parties of relevant statutory provisions.

    In relation to SAD 59 of 2015 and SAD 60 of 2015 all documents filed with the Court rely exclusively on s 793 of the FW Act in suggesting that the CFMEU contravened s 500.

SUBMISSIONS OF THE DIRECTOR

9    In summary the Director submits as follows:

    The CFMEU admitted contraventions, and the hearing in the substantive proceedings was only as to penalty.

    It is too late for the CFMEU to seek to agitate these matters, and contravenes principles articulated by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and s 37M of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).

    The CFMEU has proceeded on the same basis in numerous other cases in this and other Courts over an extended period.

    The CFMEU has been represented by experienced lawyers.

    The application to withdraw the submissions is devoid of merit.

    Both applicants filed written submissions and made oral submissions at a hearing.

    The application simply demonstrates that the lawyers for the CFMEU have formulated a new argument which they had not considered prior to the decision in Robinson, being an argument directly contrary to the arguments they ran previously.

    If the CFMEU were given leave to amend its Defence and withdraw its admissions the Director would seek to amend its statement of claim to allege, inter alia, that the CFMEU was vicariously liable pursuant to common law principles for the contravention by its officer of s 500 of the FW Act, and that it was “knowingly involved” in the contravention by its officers of s 500 of the FW Act, and therefore liable under s 550 of the FW Act.

    A party is entitled to plead matters of law, and matters of law have been expressly admitted by the CFMEU. The relevant concessions were deliberately and properly made by a party represented by Counsel in relation to a statutory provision that is capable of concession.

    It is not necessary for the Court to adjudicate on the CFMEU’s proposed argument regarding the construction of s 793 to deal with this application, however in any event the CFMEU’s arguments are wrong.

CONSIDERATION

10    Pursuant to r 26.11 of the Federal Court Rules the CFMEU has sought to file an interlocutory application seeking the leave of the Court to withdraw admissions it made in each of SAD 59 of 2015, SAD 60 of 2015 and SAD 61 of 2015 referable to s 500 of the FW Act, and require a separate trial in respect of the CFMEU’s liability on this point. Rule 26.11 relevantly provides:

(1)    A party may, at any time, withdraw a plea raised in the party’s pleading by filing a notice of withdrawal, in accordance with Form 47.

(2)    However, a party must not withdraw an admission or any other plea that benefits another party, in a defence or subsequent pleading unless:

(a)    the other party consents; or

(b)    the Court gives leave.

(3)    The notice of withdrawal must:

(a)    state the extent of the withdrawal; and

(b)    if the withdrawal is by consent—be signed by each consenting party.

11    In this case, and specifically in circumstances where the CFMEU seeks to withdraw admissions in respect of proceedings which have been largely agreed, and further heard in respect of penalty only and reserved, the Court has declined to accept the CFMEU’s interlocutory application. Relevant rules of the Federal Court are r 1.37, which empowers the Court to direct a Registrar to do, or not to do, an act or thing; and r 2.27(f), which provides:

A document will not be accepted for filing if:

…

…

(f)    the Court has given a direction that the document not be accepted without the Court’s leave, and leave has not been obtained.

12    After considering the submissions advanced by the parties I am satisfied that leave should not be granted to the CFMEU to file its interlocutory application. I have formed this view for the following reasons.

Judgment reserved

13    First, the CFMEU has not only sought to withdraw admissions, but has sought to have the question of whether the CFMEU has contravened s 500 of the FW Act (by reason of the conduct and state of mind of the individual respondents in the matters) tried separately from the matters concerning the individual respondents. This is in circumstances where the parties have formally agreed on key issues, arguments on penalty have been heard, and judgment has been reserved.

14    The question whether the Court should entertain further submissions once judgment has been reserved was recently discussed by Gilmour J in Featherby v Commissioner of Taxation [2016] FCA 454 where his Honour observed:

8.    It is well established that a superior court of justice has full power to rehear or review a case until judgment is drawn up, passed and entered: Texas Company (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457 per Starke J, cited with approval by the plurality in DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [34].

9.    The Full Court in Davis v Insolvency and Trustee Service Australia (No 2) [2011] FCAFC 9; (2011) 190 FCR 437 at 439-440 at [6] stated:

The principles surrounding the Court’s power to review its own judgment before its perfection are clear: “[w]hat must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.” (Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303 per Mason CJ). Because of the importance of the public interest in the finality of litigation, it is a jurisdiction “to be exercised with great caution” (at 302). The onus is on the applicant to demonstrate that he or she has not been heard: Autodesk at 302 citing Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 684 per Mason ACJ, Wilson and Brennan JJ.

10.    In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303, Mason CJ also said:

... It must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put.

11.    …

12.    Once a Court has concluded a hearing it will only be in very exceptional circumstances that the Court will later give leave to a party to supplement submissions. So far as procedural fairness requires that a party be given an opportunity to present its case that opportunity is given at the hearing: Eastman v DPP (ACT) (2003) 214 CLR 318 at [29]-[31].

13.    Eastman involved a criminal appeal to the High Court. After the hearing of the appeal the appellant withdrew his instruction to senior counsel and sought to advance supplementary submissions. It is a decision, in substance, to the same effect as Autodesk. The conclusion and reasons of Heydon J concurred with by the other members of the Court cited a decision of Mason J, as his Honour then was, in Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 258.

15    In applying these principles to the case before him, his Honour said:

19.    Properly understood, the applicant’s wish to advance submissions by reference to the decision in Plaintiff S157 is not to supplement or reinforce what was put in submissions at the hearing in December. Rather, it is a completely new argument …

…

25.    I am satisfied that the applicant has had every opportunity to advance his arguments. It is antithetical to the interests of justice and to the overarching purpose of this Court as contained in s 37M of the Federal Court of Australia Act 1976 (Cth) to permit these matters to be re-agitated in supplementary submissions.

16    The principles cited by his Honour in Featherby are relevant in these proceedings. For similar reasons as his Honour, I am satisfied that the “very exceptional circumstances” contemplated by the High Court in Eastman do not exist in these proceedings. The CFMEU, in consultation with its lawyers, formed the view in each set of proceedings that it would make admissions as to its contravention of s 500. The fact that, in an unrelated case, a Judge of this Court has made observations which the CFMEU now considers could be the basis of a new argument and in alteration of its approach to the case of the Director in each matter, does not in my view mean that the Court in this case should permit the respondent to revisit its agreement to aspects of the Director’s case against it. Even assuming that the principles in Robinson to which the CFMEU points are applicable in these proceedings, and would be advantageous to the CFMEU, no reason has been advanced by the CFMEU why it did not rely upon such principles in its dealings with the Director or before this Court, other than the apparent remissness of its lawyers in considering the CFMEU’s position in all three cases.

17    I do not consider this claimed reason meritorious. It is not adequate to found an application to re-open the matter in the terms sought.

Aon and section 37M

18    Further, as has been made clear in the interlocutory application the CFMEU seeks to file, the union wishes to go much further than file further submissions. Indeed it not only wishes to withdraw admissions in each of the three cases, it wishes to “go back to square one” so far as concerns the Director’s case against it in respect of s 500, and both amend its pleadings and require a separate trial in respect of its own position under s 500 of the FW Act.

19    Recently in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 the High Court said:

In Aon Risk Services Australia Ltd v Australian National University [(2009) 239 CLR 175], it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.

20    The principles explained by the High Court in both Aon and Expense Reduction should be read with the provisions of s 37M of the Federal Court Act, which contemplates, inter alia, the just resolution of disputes before the Court in a quick, inexpensive and efficient manner; the efficient use of the Court’s resources; and the disposal of all proceedings in a timely manner.

21    The statement of claim in each matter was filed by the Director on 31 March 2015. Defences were filed by the respondents in June 2015. Statements of agreed facts were filed in SAD 61 of 2015 on 22 June 2015, and in SAD 59 of 2015 and SAD 60 of 2015 on 5 August 2015, leading to the hearing of all three matters together in November 2016 and judgment being reserved. It is clear that, should the Court grant leave to the CFMEU to proceed with its interlocutory application, the Director would be put to the expense of meeting an amended defence and (as the Director has forecast) potentially amending his own pleadings in circumstances where the case had been resolved by agreement subject to the views of the Court and the imposition of a proper penalty. This would clearly be prejudicial to the Director.

22    As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in Aon:

112.    A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

23    In each of the three proceedings before the Court it cannot be contended other than that the litigation was advanced.

24    A further factor I consider relevant is the impact on the resources of the Court of leave being granted in the terms sought currently by the CFMEU. Whereas judgment is currently reserved on a matter in respect of which the parties substantially agree, the apparent subsequent change of mind by the CFMEU as to its liability pursuant to s 500 contemplates the Court being required to reopen proceedings currently adjourned for determination. Granting leave as sought by the CFMEU will inevitably have an impact on the judicial resources of the Court, and is scarcely conducive towards quick and efficient disposal of the cases before the Court.

Interests of justice

25    Finally the CFMEU argues strongly, in summary, that it should not be bound to the admissions it has made, when in fact those admissions are (in essence) contrary to law, and further that it would be the subject of substantial injustice were the Court to refuse leave to file its interlocutory application.

26    The CFMEU has filed detailed submissions as to the proper construction of s 793 of the FW Act, which provides:

Liability of bodies corporate

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)    If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

Meaning of state of mind

(3)    The state of mind of a person includes:

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

Disapplication of Part 2.5 of the Criminal Code

(4)    Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.

Note:    Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

(5)    In this section, employee has its ordinary meaning.

27    It has also filed submissions in respect of s 500 of the FW Act which provides:

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

28    Further, the CFMEU refers to the terms of s 550 of the FW Act, which provides:

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 taken to have contravened that provision.

(2)    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.

29    The crux of CFMEU’s case in respect of its interlocutory application was explained in paragraph 7 of its written submissions, namely:

There is no admission supported by evidence of any factual material capable of supporting a contravention by the CFMEU of s 500 of the FW Act. An essential element of a s 500 contravention is not and cannot be present in the case of the CFMEU. The CFMEU is not and cannot be a permit holder. As a consequence, the CFMEU seeks to contend, following the leave to file the interlocutory application that the application should be dismissed insofar as it seeks remedies against the CFMEU.

30    As I noted earlier in this judgment the CFMEU relies on the recent decision of this Court in Robinson where, relevantly, Charlesworth J observed:

48.    Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.

49.    Two further things should be said about s 793 of the FW Act. The first is that s 793 does not exhaustively prescribe the legal means by which the state of mind held by, or the conduct engaged in by, a body corporate may be ascertained. Its purpose is to provide for an expanded range of persons whose conduct and state of mind might be ascribed to a body corporate than that which exists at common law, whilst at the same time preserving the common law doctrines: Walplan Pty Ltd v Wallace [1985] FCA 479; (1985) 63 ALR 453, (1986) ATPR 40-650 at 74,252; Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153).

50.    The second thing to be said about s 793 arises from my earlier observation that it does not directly operate to fix liability for a contravention on a body corporate; it is not to be regarded as a codification of the doctrine of vicarious liability: cf Trade Practices Commission v Tubemakers of Australia Ltd (No 2) [1983] FCA 93; (1983) 76 FLR 455 (at [474]-[475])[1983] FCA 93; 47 ALR 719 (at 739) (Toohey J). The mere fact that two employees of the CFMEU have each contravened the FW Act does not of itself, demand the conclusion that the CFMEU is liable for two contraventions.

31    Further, in his affidavit Mr Ats deposed:

10.    The judgment in Robinson concerned an admitted contravention of s 417 of the FW Act (a contravention concerning industrial action and not concerning rights of entry).

11.    On 17 May 2016 in the course of the hearing in SAD58/2015, the issue mentioned in paragraph 48 of the judgment in Robinson was raised by the Court.

12.    The amended statement of claim in SAD58/20 15 relies only on s 793 of the FW Act in alleging that the CFMEU contravened s 500 of the FW Act because of the contraventions pleaded against officials or a former official of the CFMEU.

13.    Notwithstanding that the CFMEU in its amended defence in SAD58/20 15 admitted contraventions of s 500 of the FW Act,9 the Court Ordered that the question of whether the Fourth Respondent [being the CFMEU] has contravened s 500 of the Fair Work Act 2009 (Cth) by reason of the conduct and state of mind of the First and Third Respondents is to be tried separately from the issue of whether the First, Second and Third Respondents have contravened s 500 of the Fair Work Act 2009 (Cth). A copy of that Order is annexed and marked MA2.

(Footnotes omitted.)

32    In my view none of this material is compelling in support of the current matter before me.

33    At this interlocutory stage it is not appropriate for me to undertake a detailed examination of s 793 of the FW Act, its application in the three proceedings, or the application of principles discussed in Robinson at [48]-[49] in either the completely unrelated proceedings in SAD 58 of 2015 or the present cases. It is, however, relevant for me to note the following points:

    Section 793 of the FW Act, in substance, statutorily attributes to the corporation the conduct of the individuals referred to in the section: Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [58]; Australian Workers’ Union v Leighton Contractors Pty Limited [2013] FCAFC 4 at [86]; Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23 at [121].

    Section 793 is of broad application: Katzmann J in Australian Workers Union v Leighton Contractors Pty Ltd at [87].

    Section 793 provides that the relevant conduct is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body corporate. There is no distinction in s 793 between attribution of knowledge of contraventions by “permit holders”, and other contraventions of the FW Act.

    There is existing authority of this Court to the effect that a union can be liable for contraventions by a permit holder in respect of unlawful entry pursuant to s 500 of the FW Act: for example Darlaston v Parker [2010] FCA 771; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199.

34    In light of these principles I do not consider that an evident mistake of law was made by the lawyers of the CFMEU in any of the three proceedings. Further, I do not consider that the interests of justice require either that the CFMEU be given leave to withdraw its admissions of contravention of s 500 of the FW Act or that the CFMEU be permitted to advance an alternative statutory construction of s 793 as set out in its written submissions.

CONCLUSION

35    There is currently in place an order that the Court not accept the CFMEU’s interlocutory application dated 31 May 2016 in SAD 59 of 2015, SAD 60 of 2015 and SAD 61 of 2015 without leave of the Court. It is now appropriate to refuse leave for that interlocutory application to be filed.

Associate:

Dated:    18 July 2016