Federal Court of Australia

B.M.D. Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 3) [2026] FCA 169

ORDERS

THE COURT ORDERS THAT:

1.    In accordance with rule 16.21(1)(f) of the Federal Court Rules 2011 (Cth), paragraphs [17], [18](c), [19], [20], [26], [27], [28](b), [29], [30], [38], [39], [45] – [47], [49] – [51], [61] and [73] (Impugned Paragraphs) of the First Respondent’s Amended Defence be struck-out on the basis it is otherwise an abuse of the process of the Court.

2.    Further or alternatively, that the Impugned Paragraphs of the First Respondent’s Amended Defence be struck out as an abuse of process in accordance with the inherent jurisdiction of the Court.

3.    Should the parties wish to make submissions regarding costs:

(a)    by 4:00pm AEST on 5 March 2026, the applicant file and serve written submissions of no more than 3 pages with respect to costs;

(b)    by 4:00pm AEST on 12 March 2026, the respondent file and serve any written submissions in reply of no more than 3 pages with respect to costs.

(c)    the question of costs will thereafter be determined on the papers.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    This matter concerns an interlocutory application brought by the applicant against the first respondent seeking that certain paragraphs of the First Respondent’s Amended Defence be struck out on the basis that those paragraphs are an abuse of process within the meaning of r 16.21(1)(f) of the Federal Court Rules 2011 (Cth) and, or alternatively, in the Court’s inherent jurisdiction.

2    The applicant is B.M.D. Constructions Pty Ltd. The first respondent is the Construction, Forestry and Maritime Employees Union (CFMEU or the Union). The other respondents are natural persons. At the interlocutory hearing the Court granted leave for B.M.D. to rely upon an amended interlocutory application, which is contained in Annexure A to its outline of submissions dated 13 December 2024.

3    B.M.D.’s claim arises in the context of the Centenary Bridge Upgrade Project, which was awarded to B.M.D. and Georgiou Group Pty Ltd in their “unincorporated joint venture”, by the Queensland Department of Transport and Main Roads.

4    In accordance with Chapter 6 of the Work Health and Safety Regulation 2011 (Qld) (WH&S Regulation), B.M.D. is the “principal contractor” of the Project, which is a “construction Project”: see ss 292 and 293 of the WH&S Regulation.

5    The Project includes worksites on the Jindalee side of the Brisbane River (“Southern Abutment Site”) and the Kenmore side of the Brisbane River (“Northern Abutment Site”). The “main entrance to the Southern Abutment Site” exists off Sinnamon Road in Jindalee (“Main Gate”).

6    B.M.D. is responsible for these worksites in its capacity as the principal contractor.

7    In the primary proceedings the relief sought includes:

    Declarations, pursuant to s 545 of the Fair Work Act 2009 (Cth) and s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA);

    Orders for pecuniary penalties, pursuant to s 546 of the Act;

    An injunction pursuant to s 545 of the Act;

    Orders for compensation pursuant to s 545 of the Act;

    Orders for compensation pursuant to s 82 of the Competition and Consumer Act 2010 (Cth) (CCA);

    An order for damages under s 23 of the FCA;

    Costs; and

    Any further necessary orders.

8    As well, interlocutory orders made by Logan J on 23 May 2024 remain in place, inter alia restraining the first respondent and the second to tenth respondents from engaging in certain conduct with respect to the Project and points of entry thereto.

9    In this application B.M.D. seeks the following orders:

1.    In accordance with rule 16.21(c), (e) and (f) of the Federal Court Rules 2011 (Cth), paragraphs [17], [18](c), [19], [20], [26], [27], [28](b), [29], [30], [38], [39], [45] – [47], [49] – [51], [61] and [73] (Impugned Paragraphs) of the First Respondent’s Amended Defence be struck-out on the basis it is evasive and ambiguous, fails to disclose a reasonable defence and is otherwise an abuse of the process of the Court.

2.    Further or alternatively, that the Impugned Paragraphs of the First Respondent’s Amended Defence be struck out as an abuse of process in accordance with the inherent jurisdiction of the Court.

3.    In accordance with section 570 of the Fair Work Act 2009 (Cth), the First Respondent pay the Applicant’s costs of the application on the standard basis.

4.    Such other order the Court considers appropriate.

(Emphasis in original.)

background

10    B.M.D.’s case is that on both worksites, on or around 17 April 2024, work was undertaken to “pour concrete pylons for the duplication of the Centenary Bridge”. At that time, B.M.D. required visitors to the worksite to:

(a) undertake an induction process;

(b) sign a visitor register; and

(c) comply with the requirements specified therein.

11    B.M.D. claims that this was in order to comply with its policy (visitor entry policy) which constitutes an “occupational health and safety requirement” as per s 499 of the Act. As part of meeting its occupational health and safety obligations, B.M.D. authorised particular personnel who worked on the Project to require visitors to the worksite to comply with the visitor entry policy.

12    In the amended statement of claim filed on 8 October 2024, B.M.D. alleges that “[b]etween at least 23 April 2024 and 14 May 2024, the CFMEU had a policy of its officials not undertaking site inductions or signing site registers when exercising rights of entry” under the Act or the Work Health and Safety Act 2011 (Qld) (WH&S Act).

13    To that end, B.M.D. claims that CFMEU officials, namely the second to ninth, eleventh and twelfth respondents had visited the Project worksite at various times and, amongst other things, allegedly failed to comply with B.M.D.’s occupational health and safety requirement, being the visitor entry policy, such that each of those officials had contravened ss 499 and 500 of the Act.

14    In respect of the tenth respondent, B.M.D. alleges that his failure to direct the relevant CFMEU officials to cease their conduct and to comply with B.M.D.’s visitor entry policy on 29 April 2024 means that the tenth respondent “was directly or indirectly knowingly concerned” as per s 550 of the Act with respect to the relevant CFMEU officials’ alleged breaches of s 499 and 500 which occurred on 29 April 2024. B.M.D. maintains that this is so because of the tenth respondent’s:

    alleged awareness of the conduct and of B.M.D.’s visitor entry policy; and

    “power to direct” the relevant CFMEU officials in his capacity as the Assistant Division Branch Secretary of the CFMEU in Queensland and the Northern Territory and the National Divisional President of the Construction and General Division of the CFMEU

15    In addition, B.M.D. alleges that, on 14 May 2024, various CFMEU officials, namely the second to tenth respondents (Blockade Participants) participated in a Blockade at the Southern Abutment Site. B.M.D. alleges that in so doing each of the Blockade Participants contravened one or both of ss 500 and 550 of the Act, arising out of each of their conduct in relation to, and knowledge of, the Blockade and the relevant roles each played in that regard. Furthermore, B.M.D. alleges that each of the Blockade Participants contravened s 45D of the CCA.

16    B.M.D. alleges that the CFMEU, by operation of ss 550 and 793 of the Act, has also contravened ss 499 and 500 of the Act on each occasion that one of their officials has contravened those provisions. Except as it relates to the conduct and purpose of the eighth respondent, B.M.D. alleges that the CFMEU contravened s 45D of the CCA, (by operation of s 45DC(1)) and that, further or in the alternative, the CFMEU contravened s 45D of the CCA on each occasion that a Blockade Participant in the blockade contravened s 45D, relying upon s 84 of the CCA.

17    In relation to the Blockade, B.M.D. also alleges that each of the participants “deliberately and knowingly interfered in the contractual relations between BMD and its contractors by interfering with the performance of those contracts”, engaging in “obstruction and besetting” and committing a “nuisance”. B.M.D. claims that the CFMEU is “vicariously liable for the tortious conduct” of each of the participants who had acted “in their capacity as … agents, officials, or employees” of the CFMEU, excluding the eighth respondent.

18    B.M.D. lodged particulars to the amended statement of claim on 4 October 2024, and that document was accepted for filing on 8 October 2024.

19    On 18 October 2024, the CFMEU filed its amended defence.

20    The paragraphs of the applicant’s amended statement of claim, and the responsive paragraphs contained in the respondent’s amended defence which are the subject of this application, are set out respectively at Schedules 1 and 2 of these reasons. The relevant paragraphs of the applicant’s amended statement of claim generally relate to the various alleged exercise or purported exercise of a right of entry under Part 3-4 of the FW Act and Part 7 of the WH&S Act onto the Northern and Southern Abutment Sites, by one of the second to seventh and ninth to twelfth respondents, without complying with the visitor entry requirements and contrary to the directions of the applicant’s representatives. By the relevant paragraphs of its amended defence, the first respondent does not admit to the allegations of fact contained in the relevant paragraphs of the applicant’s amended statement of claim because “it does not know”.

material relied upon

21    B.M.D. relies upon:

    An amended statement of claim, lodged 4 October 2024;

    An amended defence of the first respondent, lodged 18 October 2024;

    An affidavit of Mr Damian Hegarty (first affidavit), lodged 15 May 2024;

    An affidavit of Mr Gary Grant, lodged 15 May 2024;

    A second affidavit of Mr Damian Hegarty (second affidavit), lodged 22 May 2024; and

    A third affidavit of Mr Damian Hegarty (third affidavit), lodged 8 November 2024.

    An outline of submissions, lodged 13 December 2024;

    An outline of submissions in reply, lodged 14 February 2025;

22    In his first affidavit, Mr Hegarty relevantly deposed to having watched body-worn camera footage of individuals attending the site of the Project who were either known to be CFMEU officials or were wearing clothing embossed with CFMEU logos and slogans, taken on each of 23 and 29 April 2024. Mr Hegarty additionally deposed to having viewed CCTV footage of the Project site from 29 April 2024. Annexed to Mr Hegarty’s first affidavit were affidavits in other proceedings which had annexed copies of body-worn camera footage from 23 and 29 April 2024 and CCTV footage from 29 April 2024 which captured the individuals attending the site of the Project.

23    Mr Hegarty additionally deposed to having seen and annexed copies of handwritten “Notices of Entry” provided on 23 and 29 April 2024 by the second, and fourth to twelfth respondents upon their attendance at the site of the Project.

24    In his affidavit Mr Grant relevantly deposed to having watched body-worn camera footage from 23 April 2024 which captured individuals attending the site of the Project. Mr Grant also deposed to having watched, and annexed a copy of, CCTV camera footage of CFMEU officials attending the Project site on 14 May 2024.

25    In his second affidavit, Mr Hegarty relevantly deposed to having watched, and annexed a copy of, CCTV footage of CFMEU officials attending the Project site on 14 May 2024.

26    In his third affidavit, Mr Hegarty relevantly annexed correspondence from 24 September 2024 with the respondents’ solicitors in relation to the first respondent’s failure to plead responsively to the relevant paragraphs contained in the applicant’s statement of claim (extracted in Schedule 1). Mr Hegarty’s correspondence noted that the claimed failure to plead had occurred notwithstanding that the first respondent was in possession of extensive body-worn camera footage, held various documents in relation to site entries at the Project site, and was aware that certain of its officials had been at the Project site at relevant times.

27    The CFMEU relies upon:

    An outline of submissions, lodged 31 January 2025;

    An affidavit of Mr Dale Blackmore, lodged 31 January 2025; and

    An affidavit of Mr Luke Tiley, lodged 18 February 2025.

28    In his affidavit, Mr Blackmore noted that administrators had been appointed to the CFMEU and its divisional branches. Mr Blackmore deposed to the CFMEU’s reliance on photos and video footage in other proceedings related to the Second to Twelfth Respondents’ entry onto the Project site. In deposing to the use to which such photos and video footage might be put, Mr Blackmore deposed to having been so informed by Mr Dalgliesh, an industrial officer of the CFMEU who is also a solicitor.

29    In his affidavit, Mr Tiley deposed to changes which had occurred from 31 January 2025 to the management of the Queensland and Northern Territory Branch of the CFMEU.

PRINCIPLES

30    There was no issue between the parties that the Court has the power to strike out pleadings as an abuse of process, pursuant to r 16.21(1)(f) of the Rules, or in its inherent jurisdiction. In that regard the parties accepted that the leading authority on abuse of process is the High Court decision in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77. At 393 of Walton v Gardiner, Mason CJ, Deane and Dawson JJ stated:

The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

(Footnotes omitted.)

31    Further, as B.M.D. submits, abuse of process is not limited to fixed, closed categories of conduct, relying upon Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [9].

32    Nor was any issue taken with the propositions that ss 37M and 37N of the FCA establish the “overarching purpose” of the rules relating to civil procedure and practice and impose a duty upon parties to act in a manner which is consistent with this purpose. As Perram J stated in Stewart v Deputy Commissioner of Taxation (2010) 267 ALR 637; [2010] FCA 402 at [35], the introduction of provisions like s 37M of the FCA give “added impetus” to the already well-established consideration that properly made pleadings lead to the better identification of contested issues and their more immediate and effective resolution, and that badly made pleadings, being those which depart from the purpose of ensuring procedural fairness, can inhibit the interests of justice.

SUBMISSIONS

33    B.M.D. emphasises that pleadings are a crucial aspect of a party’s obligation to uphold the purpose of civil procedure and practice, specifically, the quick, inexpensive and efficient resolution of disputes: s 37M of the FCA. Relying also on r 16.07(3), B.M.D. submits that pleadings ought not be used to obtain a forensic advantage, which it submits results from the Union’s approach to its pleading, and is “manifestly unfair”.

34    Essentially, B.M.D. contends that it is “impossible” to determine the issues at hand because “there has been no apparent engagement with the material by the CFMEU” as evidenced by the non-admissions in its amended defence. B.M.D. relies upon the statement of Colvin J in Yap v Chong [2024] FCA 1326 at [16], which reads:

It is just as important for pleadings to disclose with clarity what is not in issue as it is for them to disclose the nature of the case that is to be advanced. A statement of claim should be clear as to how far the claims goes and a defence should be clear as to those aspects of the case advanced by the applicant that are not in issue. Therefore, in considering whether a pleading exhibits the required characteristics (and thereby serves its required functions), it is important to evaluate what is contained within the pleading as well as what is absent, particularly whether the pleading fails to articulate the limits of what is in issue.

(Emphasis added.)

35    In B.M.D.’s submission, in this case the CFMEU is not prevented from pleading responsively to the relevant allegations because it is in possession of evidence which would allow it to plead with better particularity. According to B.M.D., that evidence is contained in:

    video footage which captures the conduct of the CFMEU’s officials alleged in B.M.D.’s pleading, which B.M.D. submits the CFMEU has had since 15 May 2024;

    copies of entry notices issued by B.M.D.’s officials when entering the relevant site on 23 and 29 April 2024, which B.M.D. submits the CFMEU has had since at least 15 May 2024;

    the CFMEU’s own footage of the incidents, taken by the CFMEU’s officials; and

    the CFMEU’s “report back” materials from its officials in respect of at least some of the entries to the relevant site.

36    There was a dispute regarding what comprised “report back” materials relating to entries to the relevant areas of the Project site, which B.M.D. submitted CFMEU had in its possession. In that regard B.M.D. points to the third affidavit of Mr Hegarty which exhibits a letter dated 28 October 2024 from B.M.D.’s previous legal representatives to the CFMEU’s legal representatives, which annexes the CFMEU’s written submissions in an earlier proceeding before the Queensland Industrial Relations Commission, in which Mr Dalgleish sought to rely upon “CFMEU respondent organisers report back materials, photos, and video footage”. B.M.D. submits that the CFMEU’s later assertion that such “report back” materials were a reference to photographs and video footage only, should not be accepted given that the CFMEU had not corrected it by way of an affidavit. In its written submissions the CFMEU reiterated that “report back” materials included only photos and video footage. It is not necessary to determine the extent of the “report back” materials for the purpose of this hearing – it may be accepted that they comprise at least photographs and video footage.

37    B.M.D. also submits that the CFMEU has other information that would enable it to plead with better particularity. B.M.D. submits that:

(a) the CFMEU admits, via its solicitors in correspondence, that it could identify the site (although not specific locations on it) from the relevant footage;

(b) the CFMEU accepts it has its own body worn camera footage of relevant events. Presumably that material corroborates or otherwise the BMD material and allows the CFMEU to plead.

(Footnotes omitted.)

38    B.M.D. submits that:

    The alleged conduct of the second to tenth respondents occurring on 23 April 2024 and 29 April 2024, and detailed within [18](c), [19], [20], [26], [28](b), [29], [30], [39], [45], [47], [49] – [51] and [61](a) of the amended statement of claim had been “largely or entirely captured on body worn camera footage”. That footage is annexed to the first affidavit. Annexure B to B.M.D.’s outline of submissions details the location of the conduct within the footage annexed to the first affidavit by reference to the annexure, location and time stamp where relevant;

    Each entry to the worksite on 23 April 2024 and 29 April 2024, excepting Mr Turner-Davey’s entrance on 23 April 2024, had been accompanied by a handwritten and signed entry notice, which stated that the entry occurred pursuant to s 117 of the WH&S Act. That evidence was also annexed to Mr Hegarty’s first affidavit;

    The affidavit of Mr Dylan Howard, dated 21 May 2024, established that Mr Howard, Mr Vonhoff and Mr Turner-Davey were on the worksite on 23 April 2024;

    With respect to the alleged exercise of an entry power as per Pt 3-4 of the Act and Pt 7 of the WH&S Act, occurring on 23 April 2024 and 29 April 2024, and referred to in [17], [27], [38] and [46] of B.M.D.’s amended statement of claim, there existed “signed, hand written entry notices from each of [the CFMEU’s] officials”, except for the second respondent, which are exhibited to Mr Hegarty’s first affidavit. In respect of the second respondent, there was a signed handwritten entry notice for 23 April 2024 only; and

    With respect to the alleged conduct occurring on 14 May 2024, which is referred to in [73](a) of B.M.D.’s amended statement of claim, “there is a significant amount of footage” annexed to Mr Hegarty’s first affidavit which evidences the relevant conduct.

39    The CFMEU contends, however, that, given the circumstances, it has not engaged in an abuse of process by responding to the relevant paragraphs of B.M.D.’s amended statement of claim with non-admissions. Instead, the CFMEU contends that B.M.D. has inappropriately insisted that it make admissions in circumstances where B.M.D. can only point to evidence that exists which tends to support its allegations in the amended statement of claim.

40    The CFMEU’s submissions fall broadly into two categories:

(1)    The CFMEU does not have adequate knowledge such that it could plead in the manner advanced.

(2)    Several of B.M.D.’s pleadings contain various allegations of fact that are “rolled-up” together, to which the CFMEU cannot responsively plead because it is unable to “disaggregate” the relevant propositions.

41    With respect to the evidence upon which B.M.D. relies to submit that the CFMEU is in a position to better plead, the CFMEU specifically submits:

(a) the video footage captured by body worn cameras is difficult to understand without commentary, and may not be comprehensive;

(b) the existence of a handwritten notice of entry, without more, is not conclusive proof that the CFMEU Officers actually did exercise the right of entry described in the notice at the time and in the way alleged; and

(c) BMD overlooks the fact that the CFMEU Officers themselves deny the Officer Conduct Allegations.

42    The CFMEU submits that it is entitled to plead non-admissions as it is a respondent “who does not itself know the truth or otherwise of allegations made in a statement of claim” and is not required to record its factual findings based upon untested evidence at an interlocutory stage. This is “especially the case”, the CFMEU contends, where other parties have “first-hand knowledge” in relation to the allegations, have denied those allegations, can challenge the evidence, can adduce further evidence, can plead additional facts and/or waive privilege.

43    Further, the CFMEU contends that no knowledge could be imputed to it as both the “controlling mind[s]” of the CFMEU and its Queensland and Northern Territory Divisional Branch were appointed subsequent to the alleged events and therefore have no “first-hand knowledge” of the conduct the subject of the allegations. Further, as Ms Lucinda Weber, the Director of National Office, Legal and Industrial, and Mr Dalgleish, who are the CFMEU’s instructors in respect of the day-to-day conduct of this proceeding, were not present throughout the alleged events, they do not possess “first-hand knowledge” of the conduct the subject of the allegations. Those with “first-hand knowledge”, according to the CFMEU, are entitled to claim penalty privilege.

44    As a result, the CFMEU submits that B.M.D. does not face manifest unfairness in being put to proof on these allegations, nor does the CFMEU’s conduct in pleading non-admissions bring the administration of justice into disrepute.

45    In reply, B.M.D. submits that there is no requirement for those “specific individuals” instructing the CFMEU’s solicitors to have “first-hand knowledge” of the allegations, but those persons must make “evaluative judgments based on the material available to [the CFMEU] at the time of pleading”. The CFMEU must plead as a party to the proceeding with its own legal personality.

46    With respect to the CFMEU’s reliance upon the affidavit of Mr Blackmore, filed 31 January 2025, B.M.D. submits that that affidavit does not:

(a) identify any difficulty on the part of the CFMEU in identifying any individual in the footage;

(b) identify any reason that the CFMEU does not consider the footage to be a reliable or accurate record of what occurred;

(c) identify any difficulty on the part of the CFMEU in identifying the site captured in the footage;

(d) identify any steps taken by the CFMEU, or those responsible for instructing its lawyers, to interrogate the material available to them so as to be in a position to plead responsively;

(e) identify any steps taken by the CFMEU to speak with its other employees to identify whether they had knowledge which could assist the union to plead;

(f) identify any searches of CFMEU computer servers and hard copy files for relevant documentation; or

(g) identify any matter which might have prevented the CFMEU from taking any of the steps mentioned in subparagraphs (d) to (f) above.

47    B.M.D. also submits that Mr Dalgleish’s explanation, given on information and belief, regarding the “report back” materials “is inherently improbable” and that as the CFMEU has failed to put on evidence from Mr Dalgleish, an adverse inference should be drawn, relying upon Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. The CFMEU should not be permitted to “treat civil proceedings as though they are criminal”, because this is prejudicial to B.M.D. for the following reasons:

    B.M.D. will be required to prove facts which should be admitted by the CFMEU;

    the CFMEU can “conduct trial by ambush”, which will cause B.M.D. difficulties in preparing witnesses and identifying additional evidence, and may require B.M.D. to “apply to re-open its case”;

    the CFMEU will partake in the proceedings as if entitled to benefits arising from penalty privilege; and

    more generally, there will be prejudice relating to disclosure and attempts to resolve the dispute between B.M.D. and the CFMEU.

48    B.M.D. acknowledges that the CFMEU may face some uncertainty in its pleadings and accepts that the individual respondents are entitled to penalty privilege with respect to their alleged conduct. Further, B.M.D. acknowledges that it bears the onus of proof at trial but contends that the CFMEU remains obliged to identify the issues to be borne out at trial through proper pleading.

49    B.M.D. relies upon LM Investment Management Ltd (in liq) v EY (No 5) [2020] QSC 264.

50    LM Investment Management concerned contractual, tortious and statutory claims brought by the plaintiff against the defendants, its prior auditors: at [1]. The first defendant was a corporation, and the second and third defendants were natural persons. In the defendants’ defence, several paragraphs invoked “privilege against self-incrimination or exposure to a civil penalty”: at [2]. The plaintiff applied to strike out those paragraphs on three bases: (1) if the defendants had “a right to claim privilege”, then they should not be permitted to delay any waiver; (2) some of the defendants’ privilege claims cannot be justified; and (3) the defendants cannot be permitted to make two “blanket” privilege claims: at [2].

51    In that case, Dalton J explained at [55] the importance of confining “privilege against self-incrimination and exposure to a penalty” to the person “called upon to produce documents or information compulsorily”, citing Rochfort v Trade Practices Commission (1982) 153 CLR 134; [1982] HCA 66. At [56] of LM Investment Management, her Honour adopts the reasoning of the Full Court of the Federal Court of Australia in Meneses v Directed Electronics OE Pty Ltd (2019) 273 FCR 638; [2019] FCAFC 190 as follows:

In the case of Meneses v Directed Electronics OE Pty Ltd the Full Court of the Federal Court cited Lindgren J in Microsoft Corporation v CX Computer Pty Ltd for the following series of propositions:

“(1) a corporate defendant … may be required to provide documents and information which may tend to incriminate its officers …

(2) a corporate defendant cannot invoke privilege on the grounds that an order or requirement to produce documents or information might tend to incriminate a natural person, such as a director …

(3) a natural person cannot complain that a corporate defendant’s compliance with an order or requirement to produce documents or information might tend to incriminate him or her …

(4) the relevant inquiry is whether an order directed to the corporate defendant will require that a natural person tend to incriminate himself or herself …

(5) a corporate defendant cannot refuse to comply with a direction for the filing of evidence on the basis that its evidence may incriminate other natural person defendants or expose them to a penalty … However a corporate defendant will not breach such direction if it fails to file a statement or affidavit from a witness where that witness claims privilege … That is to say, compliance is not required if the only source of the information is the director defendants and they are entitled to remain silent … If the corporate defendant has other sources of information available from which it can comply with the direction, then it must do so.” (emphasis in the original)

(Emphasis in original and footnotes omitted.)

52    Her Honour concludes at [58] of LM Investment Management that:

No order I make will compel the second or third defendants to assist the first defendant. While the second and third defendants are not obliged to provide the first defendant with information about what is pleaded, the first defendant will need to ascertain what it can from all other sources, eg, the documents available to it, and employees who worked with the second and third defendants. It will need to obtain expert opinion on the audit files. The second and third defendants are not the only sources of information available to the first defendant.

53    The CFMEU seeks to distinguish LM Investment Management from the present case on the facts. It argues that:

    LM Investment Management concerned “corporate behaviour by a trustee in a partnership”;

    The issues which arose included “accounting issues” and “the nature of trust assets”;

    The “non-privileged claiming respondent” had alternative ways to investigate, such as obtaining expert reports on audits; and

    The present case is not one amenable to merely “reviewing accounts or reviewing documents recording properly [sic] dealings”.

54    The CFMEU seeks to draw a distinction between the sort of evidence referred to in LM Investment Management and the video footage and entry notices in this matter to which B.M.D. points, and which B.M.D. argues tends to enable the CFMEU to plead to the relevant allegations. The CFMEU relies upon Connelly v McGrath (2019) 3 QR 99; [2019] QSC 304 at [170] – [173] for the proposition that a company may be exempt from various civil litigation processes, on the basis that to do so would impugn the privilege claimed by an individual, as follows:

Where the steps required of a sole director of a company in filing a defence cannot be fairly or reasonably assigned to another individual (that is, one who has the requisite knowledge to provide full and proper instructions) the company will be relieved from its obligation to file a defence in accordance with the rules of Court (Re APCH).

Where a corporate entity is required to take a step which can be achieved without impinging upon the penalty privilege then it is obliged to take that step (John Holland v CFMEU).

Where the director of a corporation is at risk of self-incrimination or self-exposure to penalty by complying with a notice to produce (including by verifying a list of documents) but it is not impossible or impractical for another person not at risk to comply with the notice or to verify the list, the corporation is not relieved from giving discovery or complying with the notice to produce (Microsoft v CX).

If there is another member, employee or officer of a company, who has not asserted privilege and who is able to appropriately achieve compliance with discovery, subpoenas or notices to produce, then the corporation must take steps to comply with their obligations (Re APCH).

55    Additionally, the CFMEU relies upon Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185. The CFMEU submits that Logan J at [24] of O’Halloran, in dissent although not on this point, indicates the widespread adoption of the reasoning in Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32; [2007] FCA 1620. See also [69] of O’Halloran per Kerr and Wigney J.

56    B.M.D. contends that Connelly is distinguishable on the basis that it was directed towards “the steps required of a sole director of a company in filing a defence”.

57    In relation to its argument about rolled-up pleadings, in oral submissions at the hearing on 19 February 2025, counsel for the CFMEU made an example of [17] of the amended statement of claim which concerns an allegation made against Mr Turner-Davey. Counsel described this allegation as, relevantly, that “in entering the site, Mr Turner[-Davey] was … exercising or seeking to exercise particular rights of entry”, and that such an allegation is “rolled up”. It is “rolled up”, the CFMEU submits, because it contains two independent propositions.

58    The CFMEU contends that because the allegation at [17] of the amended statement of claim “involves something about Mr Turner[-Davey] and what it was that he was doing” and Mr Turner-Davey is the “best placed” person to inform the parties of his intentions and denies the allegation, the CFMEU cannot plead responsively. It contrasts this with hypothetical circumstances in which the “rolled-up” pleading at [17] of the amended statement of claim is separated, for example with respect to the relevant entry notice, such that the CFMEU could plead responsively to that aspect of the allegation.

59    The CFMEU relies upon the statements of Kerr and Wigney JJ at [74] of O’Halloran to point out that it is permissible for a respondent to respond to a “rolled-up allegation” in a manner which reflects this, and that any issue an applicant takes in relation to this response is “a problem of his own making”. The CFMEU contends that this is also reflected in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 1032 at [33].

60    The CFMEU submits that John Holland is “so similar” to the present case, that the Court should follow its authority. John Holland concerned a number of applications, including a strike out application in respect of the first respondent’s further amended defence, or particular paragraphs therein, and a strike out application in relation to various paragraphs of the applicant’s amended statement of claim, or alternatively, an application for an order for “further and better particulars” in relation to several of the paragraphs: John Holland at [1] – [2]. The facts are broadly similar to the present case, in that:

    the statement of claim sought “relief against the CFMEU on the basis that it is vicariously liable for the conduct of the other, individual respondents, who it is alleged have contravened various provisions of the FW Act and engaged in the torts of unlawful interference with contractual relations and nuisance”: at [4];

    some of the respondents, but not the CFMEU, were entitled to penalty privilege such that the applicant did not object to the pleading of non-admissions by those respondents: at [8]; and

    the applicant submitted that the CFMEU could not use the penalty privilege invoked by the other respondents to plead its own non-admissions: at [11] – [12].

61    In particular, the CFMEU directs the Court to [39] – [43] of John Holland, which reads as follows:

As to matters of principle, counsel accepted the general propositions identified above. As to Mining Projects Group and Australian Property Custodian Holdings, counsel submitted that the clash of authorities suggested on behalf of John Holland did not exist and there is no necessary inconsistency between the authorities. Counsel submitted that Abbco Iceworks concerned the provision of documents by way of a notice to produce and it was accepted that the CFMEU, as a corporate respondent, could not claim privilege in relation to the production of documents because they were the documents of the union.

Counsel submitted that the fundamental distinction in the present case is that, what John Holland is asking the CFMEU to do, is act as its agent, in effect, to uncover the factual information that John Holland requires.

Counsel submitted that a consistent theme running through a number of authorities is that where a corporate entity is required to take a step which can be achieved without impinging upon the penalty privilege, then it is obliged to take that step, but where it is required to take a step which would impinge upon that privilege then it is not obliged to do so. Australian Property Custodian Holdings was identified as a decision falling into that category.

In the result, counsel submits that an individual ought not to be required to provide information where the provision of that information might impact or impinge upon a privilege enjoyed by that individual. What the CFMEU says here, is that the suggestion by John Holland that the individual respondents who claim the privilege must provide instructions for the purpose of preparing the union’s defence, necessarily impinges upon the privilege which is enjoyed by each of them.

Counsel submits that if there is an allegation in terms of whether a particular person did something on a particular day, or whether when he or she did something they had a particular intention, and where that information can only come from that particular individual who claims the penalty privilege, the union cannot be required to do more.

62    The CFMEU relies upon Barker J’s statements at [49] of John Holland to support the proposition that it bears no obligation “to undertake positive inquiries in order to make a plea admitting or denying an allegation” where the CFMEU “does not know the truth or falsity” of the factual allegations. The CFMEU relies on [51] of John Holland for the proposition that “[i]t may be, depending on how the case develops, that factual matters may become known to the CFMEU which might then cause it to alter its current non-admission pleadings”, however it submits that this only emphasises that the CFMEU could not plead a positive case as it is “presently informed”. As to the availability of video evidence in this case, the Union submits that it is still a form of documentary evidence which would require “interpretation” and, at this stage, is “incomplete”.

63    Contrastingly, B.M.D. submits that John Holland is not “on all fours with the present case”. B.M.D. did not submit that the CFMEU is required to “make positive inquiries of the individual respondents” but rather that it must plead on the basis of the information currently available to it. Further, B.M.D. points to the lack of evidence going to whether the CFMEU has made “appropriate inquiries” of other persons in the Union.

64    See also Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 652 at [6] – [7], where Mansfield J considered a strike-out application in respect of pleadings where claims of penalty privilege arose. In that case, the pleadings at issue were contained in the first respondent’s defence and were bare denials of the applicant’s pleadings: at [4] – [5]. Mansfield J struck out the pleadings on the ground that the first respondent was not entitled to use the privilege of some respondents to avoid compliance with the relevant pleading rule, in circumstances where it was alleged that other persons were present when the conduct the subject of the applicant’s pleadings was allegedly engaged in: at [6] – [7].

65    In John Holland, Barker J accepted the applicant’s submissions that Fair Work Building Industry Inspectorate was distinguishable, based on, inter alia, the fact that others were available to give evidence in that case. Importantly, Barker J noted the submission that if John Holland had had access to information upon which it could make admissions, it would have done so: John Holland at [58] – [65].

66    As to the example of a “rolled up” pleading relied upon by the Union, B.M.D. contends that the contents of [17] of the amended statement of claim can be pleaded to responsively by the CFMEU. Counsel submitted that, by way of the admission in response to [16] of the amended statement of claim, namely that Mr Turner-Davey entered the relevant site, there already existed an admission going to the introductory phrase of [17], being “[i]n entering the Southern Abutment Site”.

67    Counsel for B.M.D. referred to the allegations in [17](a), (b), and (c) of the ASOC which refer to Mr Turner-Davey “exercising, or seeking to exercise”:

(a) a right of entry under Part 3-4 of the FW Act;

(b) a right of entry under Part 7 of the WHS Act; and

(c) by reason of subparagraph (b) above, a “State or Territory OHS right” within the meaning of s 499 of the FW Act.

68    Counsel for B.M.D. pointed to the “CFMEU-headed WHS Entry Permit Holder Notice of Entry” on the relevant day in relation to Mr Turner-Davey, which is annexed to Mr Hegarty’s first affidavit. It contains Mr Turner-Davey’s name, the name and address of the workplace, and the purpose of entry, and relevantly, a tick next to the statement “section 117 WHS Act: entry to inquire into a suspected contravention of the WHS Act” with respect to the “purpose of entry”, accompanied by a description of the “suspected contravention” and various ticks beside statements related to the CFMEU’s entitlement to represent the workers and the relatedness of the suspected contraventions to those workers. In B.M.D.’s submission, this indicates that the CFMEU has sufficient evidence to better plead to the allegations in [17](a), (b), and (c) of the amended statement of claim.

consideration

69    As B.M.D. accepts, the CFMEU may face some uncertainty in its pleadings, individual respondents are entitled to penalty privilege with respect to their alleged conduct, the Union is under no obligation to make positive inquiries of the respondents claiming penalty privilege, and the CFMEU’s case may evolve in response to the maintenance or waiver of privilege by those respondents. However, I do not consider that this is a case in which the information, which would enable the CFMEU to plead more responsively, is only reposed within the respondents to whom penalty privilege applies.

70    This is not a case like Connelly, in which a company, by way of the circumstance of having only a sole director, is unable to plead without impugning penalty privilege. Nor is this a case in which there exists no evidence in the first respondent’s possession, which it could use to inform itself of the appropriate response to allegations, other than that to which penalty privilege attaches.

71    It may be that the persons best informed of the truth or falsity of the allegations are the respondents to whom penalty privilege applies, but the CFMEU remains in a position, by way of video footage, entry notices and the evidence of other Union employees (that is, not the natural person respondents in this matter), to determine its position in relation to the allegations. In contrast to John Holland, the use of this evidence by the CFMEU, which is, or will be available to both parties, cannot be described as requiring the natural person respondents to provide instructions to the CFMEU so that it can prepare its defence, and therefore necessarily impinge upon any penalty privilege enjoyed by them: compare John Holland at [39] – [45]. The CFMEU retains its own legal personality and is itself a party to the proceeding. Therefore, it must proceed to plead on that basis.

72    I am not compelled by the CFMEU’s contentions with respect to the evidence, namely that the video footage may not be comprehensive and that the entry notices do no more than demonstrate that the relevant respondents were present, as it is to be expected in any proceeding that the evidence at this stage may be untested, incomplete or uncertain. This does not abrogate the requirement that parties plead as responsively as possible to the allegations put forth by the opposing party.

73    It is clear from the Rules and the FCA that the envisioned procedure for civil practice is one which is directed towards the most effective and least costly method for resolving disputes justly.

74    To that end, the parties to a proceeding should conduct themselves in a manner which best gives effect to this, including but not limited to, pleading responsively. Ultimately, pleadings are the forum for parties to lay out their respective cases and narrow the issues in contention. The parties are entitled to know the cases to be met, and the places to which to direct their resources. See Yap at [16] and Stewart at [35].

75    Although not obliged to interrogate the respondents claiming penalty privilege, the CFMEU has fallen far short of what could reasonably be expected of a respondent who must plead in a proceeding. It has put on evidence demonstrating no more than a cursory engagement with the video footage and notices of entry. There is no evidence relating to appropriate inquiries made of other Union employees; rather, the CFMEU has put on evidence as to why it cannot obtain first-hand knowledge. The CFMEU appears to treat first-hand knowledge as the only information available to it in order to plead. This is simply not the case in the present circumstances.

COSTS

76    I note that in the orders proposed by the parties, the applicant sought orders that:

The First Respondent is to pay the Applicant’s costs of the application on the standard basis.

77    The respondents sought orders that:

There be no order as to costs.

78    Costs orders are not usually made in the Fair Work jurisdiction, other than in specified circumstances.

79    Section 570 of the Fair Work Act 2009 (Cth) provides:

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

80    No submissions relating to costs were actually made. In the circumstances, I consider that the parties should be given time to make submissions in the event that the applicant urges that the usual position should not apply. Accordingly, I have made orders to accommodate that eventuality.

conclusion

81    The applicant’s application is granted.

Schedule 1 – Relevant paragraphs of Applicant’s Amended Statement of claim

17.    In entering the Southern Abutment Site, Mr Turner-Davey was exercising, or seeking to exercise:

(a) a right of entry under Part 3-4 of the FW Act;

(b) a right of entry under Part 7 of the WHS Act; and

(c) by reason of subparagraph (b) above, a “State or Territory OHS right” within the meaning of s 499 of the FW Act.

18.     Upon entering the Southern Abutment Site, Mr Turner-Davey:

…

(b) refused to comply with the Visitor Entry Requirements.

19.     Mr Turner-Davey was informed by Mr Benson that he would not be permitted to continue onto other parts of the Southern Abutment Site until he had completed the Visitor Entry Requirements.

20.     Thereafter, Mr Turner-Davey:

(a) continued to refuse to comply with the Visitor Entry Requirements;

(b) repeatedly attempted to push past Mr Benson and the other representatives of BMD present, to access other areas of the site;

(c) swore at Mr Benson and the other representatives of BMD;

(d) pushed Mr Benson;

(e) deliberately walked into Mr Benson;

(f) was read a copy of the entry rules of the Sites (the Site Entry Rules) by Mr Lovewell, another representative of BMD, in an attempt by Mr Lovewell to communicate the Visitor Entry Requirements orally;

(g) walked away from Mr Lovewell on multiple occasions while he was attempting to communicate the Visitor Entry Requirements;

(h) orally interrupted Mr Lovewell on multiple occasions while he was attempting to communicate the Visitor Entry Requirements;

(i) refused to sign a physical attendance record when requested to acknowledge that he had been read the Site Entry Rules by Mr Lovewell; and

(j) refused to leave the Southern Abutment Site when requested to do so on multiple occasions by Mr Benson.

…

26.     At around 7.30am on 23 April 2024, Mr Howard and Mr Vonhoff entered the Southern Abutment Site on foot via the Main Gate pedestrian walkway.

27.     In entering the Southern Abutment Site, each of Mr Howard and Mr Vonhoff was exercising, or seeking to exercise:

(a) a right of entry under Part 3-4 of the FW Act;

(b) a right of entry under Part 7 of the WHS Act; and

(c) by reason of subparagraph (b) above, a “State or Territory OHS right” within the meaning of s 499 of the FW Act.

28.     Shortly after they entered the Southern Abutment Site:

(a) Mr Howard and Mr Vonhoff were asked by Mr Benson and Mr Lovewell, as representatives of BMD, on multiple occasions to comply with the Visitor Entry Requirements;

(b) Mr Howard and Mr Vonhoff refused to comply with the Visitor Entry Requirements; and

(c) Mr Howard said words to Mr Lovewell to the effect of, “You’re pathetic. You know nothing about the industry”.

29.     Mr Howard and Mr Vonhoff were informed by Mr Benson that they would not be permitted to continue onto other parts of the Southern Abutment Site until they had completed the Visitor Entry Requirements.

30.     Thereafter, each of Mr Howard and Mr Vonhoff:

(a) continued to refuse to comply with the Visitor Entry Requirements;

(b) was read a copy of the Site Entry Rules by Mr Benson, in an attempt by Mr Benson to communicate the Visitor Entry Requirements orally;

(c) verbally interrupted Mr Benson on multiple occasions while he was attempting to communicate the Visitor Entry Requirements;

(d) refused to sign a physical attendance record when requested to acknowledge that he had been read the Site Entry Rules by Mr Benson;

(e) repeatedly attempted to push past Mr Lovewell and the other representatives of BMD present, to access other areas of the site;

(f) refused to leave the Southern Abutment Site when requested to do so on multiple occasions by Mr Benson; and

(g) in the case of Mr Howard, pushed Mr Lovewell.

…

38.     In entering the Northern Abutment Site, each of Mr Mattas and Mr Cox was exercising, or seeking to exercise:

(a) a right of entry under Part 3-4 of the FW Act;

(b) a right of entry under Part 7 of the WHS Act; and

(c) by reason of subparagraph (b) above, a “State or Territory OHS right” within the meaning of s 499 of the FW Act.

39.     Shortly after they entered the Northern Abutment Site, Mr Mattas and Mr Cox:

(a) did not report to the site office for the Northern Abutment Site;

(b) were asked by Mr Willetts and Mr Benson, as representatives of BMD, on multiple occasions to comply with the Visitor Entry Requirements;

(c) refused to comply with the Visitor Entry Requirements;

(d) stood within the exclusion zone of a concrete pump which was required to perform the Concrete Works; and

(e) refused, when repeatedly asked by Mr Benson, to move out of the exclusion zone of the concrete pump to enable it to be set up for a concrete pour.

…

45.     At around 6.30am on 29 April 2024, the following individuals entered the Southern Abutment Site on foot:

(a) Mr Howard;

(b) Mr Vonhoff;

(c) Mr Turner-Davey;

(d) Mr Cox;

(e) Mr Edwards;

(f) Mr Sinclair; and

(g) Mr Porter.

46.     In entering the Southern Abutment Site, each of the individuals referred to in paragraphs 45(a) to (g) above was exercising, or seeking to exercise:

(a) a right of entry under Part 3-4 of the FW Act;

(b) a right of entry under Part 7 of the WHS Act; and

(c) a “State or Territory OHS right” within the meaning of s 499 of the FW Act.

47.     Shortly after they entered the Southern Abutment Site, the individuals referred to in paragraphs 45(a) to (g) above:

(a) were collectively asked by Mr Benson, as [a] representative of BMD, to comply with the Visitor Entry Requirements;

(b) refused to comply with the Visitor Entry Requirements; and

(c) together pushed past Mr Benson and the other representatives of BMD present through to the ‘laydown’ area of the Southern Abutment Site.

…

49.     During oral exchanges with Mr Benson at or around the time they entered the Southern Abutment Site:

(a) Mr Howard:

(i) threw a document at Mr Benson;

(ii) said words to Mr Benson to the effect that:

(A) he was “the cancer of the industry”;

(B) he would be sacked; and

(C) he was “a piece of shit”; and

(iii) called Mr Benson a “rat”; and

(b) Mr Cox called Mr Benson a “dog”.

50.     Thereafter:

(a) Mr Turner-Davey, Mr Sinclair, and Mr Cox scaled a retaining wall and went over a fence into an exclusion zone, thereby causing work within that zone to cease;

(b) Mr Howard, Mr Edwards, and Mr Porter:

(i) removed a bracket that had been secured at the top of a security fence;

(ii) proceeded through the fence to the lower section of the Southern Abutment Site, adjacent to the Brisbane River; and

(iii) entered an exclusion zone, thereby causing work within that zone to cease;

(c) Mr Thompson entered the Southern Abutment Site without reporting to the site office or completing the Visitor Entry Requirements; and

(d) Mr Mattas and Mr Thompson walked, unescorted, to the lower section of the Southern Abutment Site, adjacent to the Brisbane River.

51.     In entering the Southern Abutment Site, as pleaded in paragraph 50(c) above, Mr Thompson was exercising, or seeking to exercise:

(a) a right of entry under Part 3-4 of the FW Act;

(b) a right of entry under Part 7 of the WHS Act; and

(c) a “State or Territory OHS right” within the meaning of s 499 of the FW Act.

…

61.     Mr Ingham:

(a) was present on the bicycle path which bisects the Southern Abutment Site during the morning of 29 April 2024;

(b) observed, and therefore had knowledge of, some or all of the conduct pleaded in paragraphs 45 to 51 above;

(c) it can be inferred from the matters pleaded in paragraphs 60, 61(a), and 61(b) above, organised some or all of the conduct pleaded in paragraphs 45 to 50 above; and

(d) encouraged, by his presence, the conduct pleaded in paragraphs 45 to 51 above.

…

73.     At approximately 1.30pm on 14 May 2024:

(a) approximately 30 to 40 individuals wearing CFMEU-branded clothing stood in front of, or around, the Main Gate entrance to the Southern Abutment Site, thereby barring entrance to the Sites via that gate (the Blockade); and

(b) Mr Turner-Davey and Mr Porter joined the Blockade by walking up the pedestrian footpath at the Southern Abutment Site and standing with the individuals assembled in front of the Main Gate.

(Emphasis in original.)

Schedule 2 - Relevant paragraphs of Respondent’s Amended Defence

17.     The CFMEU does not admit the allegations in paragraph 17 of the statement of claim because it does not know.

18.     As to paragraph 18 of the statement of claim, the CFMEU:

…

(c) does not admit the allegation in subparagraph (b) because it does not know.

…

19.     The CFMEU does not admit the allegations in paragraph 19 of the statement of claim because it does not know.

20.     The CFMEU does not admit the allegations in paragraph 20 of the statement of claim because it does not know.

…

26.     The CFMEU does not admit the allegations in paragraph 26 of the statement of claim because it does not know.

27.     The CFMEU does not admit the allegations in paragraph 27 of the statement of claim because it does not know.

28.     As to paragraph 28 of the statement of claim, the CFMEU:

…

(b) otherwise denies the allegations in that paragraph.

…

29.     The CFMEU does not admit the allegations in paragraph 29 of the statement of claim because it does not know.

30.     The CFMEU does not admit the allegations in paragraph 30 of the statement of claim because it does not know.

…

38.     The CFMEU does not admit the allegations in paragraph 38 of the statement of claim because it does not know.

39.     The CFMEU does not admit the allegations in paragraph 39 of the statement of claim because it does not know.

…

45.     The CFMEU does not admit the allegations in paragraph 45 of the statement of claim because it does not know.

46.     The CFMEU does not admit the allegations in paragraph 46 of the statement of claim because it does not know.

47.     The CFMEU does not admit the allegations in paragraph 47 of the statement of claim because it does not know.

…

49.     The CFMEU does not admit the allegations in paragraph 49 of the statement of claim because it does not know.

50.     The CFMEU does not admit the allegations in paragraph 50 of the statement of claim because it does not know.

51.     The CFMEU does not admit the allegations in paragraph 51 of the statement of claim because it does not know.

…

61.     The CFMEU does not admit the allegations in paragraph 61 of the statement of claim because it does not know.

…

73.     The CFMEU does not admit the allegations in paragraph 73 of the statement of claim because it does not know.

(Emphasis in original.)

Associate:

Dated:    26 February 2026

SCHEDULE OF PARTIES