Federal Court of Australia

B.M.D. Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 4) [2026] FCA 1037

ORDERS

THE COURT ORDERS THAT:

1.    There be no order for costs in relation to the applicant’s amended interlocutory application handed up on 19 February 2025.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    On 26 February 2026, I made orders (Strikeout Orders) striking out certain paragraphs of the first respondent’s (CFMEU or the Union) amended defence filed on 18 October 2024, under r 16.21(1)(f) of the Federal Court Rules 2011 (Cth) and further or alternatively in accordance with the Court’s inherent jurisdiction: B.M.D. Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 3) [2026] FCA 169 (Strikeout Judgment). The substantive proceeding concerns various alleged breaches of ss 499, 500 and 550 of the Fair Work Act 2009 (Cth) by various officials of the CFMEU, and the CFMEU, in connection with the Centenary Bridge Upgrade Project, which was awarded to the applicant (B.M.D.) and Georgiou Group Pty Ltd. Breaches of s 45D of the Competition and Consumer Act 2010 (Cth) (CCA) are also alleged: Strikeout Judgment at [3] – [7], [10] – [17].

2    In the application to strike out certain parts of the CFMEU’s amended defence (Strikeout Application), which B.M.D. ultimately pressed in an amended form, B.M.D. alleged that some of the CFMEU’s non-admissions as to B.M.D.’s allegations of CFMEU officials’ attendance at the Site on various occasions, on the basis that “it does not know”, were an abuse of process: see Strikeout Judgment at [9], [20]. I accepted B.M.D.’s argument that the information which would enable the CFMEU to plead responsively was not solely reposed within individuals who had claimed penalty privilege in that case, and that it remained in a position to determine its position in relation to the allegations. That information included video footage, entry notices and the evidence of other CFMEU employees who were not parties to the proceedings. The use of this evidence did not require the other respondents to provide instructions to the CFMEU and impinge upon the penalty privilege claimed by them: Strikeout Judgment at [69] – [71]. The fact of the evidence potentially not being comprehensive did not abrogate the CFMEU’s requirement to plead responsively: at [72].

3    The Strikeout Orders provided for the parties to file submissions regarding costs, with the question of costs to thereafter be determined on the papers. Pursuant to these orders, B.M.D. and the CFMEU on 5 and 12 March 2026, respectively, filed submissions on costs. On 16 March 2026, the CFMEU filed an application for extension of time and leave to appeal (Leave Application) in respect of the Strikeout Judgment, which has not yet been determined. By emails dated 27 March and 8 April 2026, however, the Union and B.M.D. respectively confirmed that they were content for me to determine the question of costs while the Leave Application was on foot.

Materials relied on

4    B.M.D. relies on:

(1)    Affidavits of Mr Hegarty affirmed on 8 November 2024 (First Hegarty Affidavit) and 5 March 2026 (Second Hegarty Affidavit).

(2)    Written submissions filed on 5 March 2026.

5    The Union relies on written submissions filed on 12 March 2026.

Principles

6    The parties accepted that s 570 of the Act applies to the issue of costs in this proceeding, and that that section sets a high bar for the order of costs. This is consistent with authority that simply because an interlocutory application is brought pursuant to the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the Rules, it does not mean that it does not arise under the Act for the purpose of s 570 of the Act: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987 at [121].

7    Section 570 of the Act provides as follows:

570  Costs only if proceedings instituted vexatiously etc.

(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.

…

(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.

8    Section 570(1) of the Act “operates as an express limitation on the broad discretion to award costs” conferred on the Court by s 43 of the FCA Act, but this limitation does not apply if one or more of the criteria in s 570(2) of the Act are satisfied: United Firefighters’ Union of Australia v Fire Rescue Victoria [2025] FCAFC 7 at [20] (Katzmann, Snaden and Shariff JJ). The limitation in s 570 operates “to provide access to justice by ensuring that the fear of an adverse costs order does not discourage litigants from pursuing good claims”: Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 at [7] (Bromberg J), citing Hutchinson v Comcare (No 2) [2017] FCA 370 at [8] (Bromberg J), Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ), Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64] (Mortimer J, as her Honour then was). Where one or more of the preconditions of s 570(2) of the Act is satisfied, the Court should not award costs except in a “clear case”: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] (Bromberg J).

9    The phrase “‘unreasonable act or omission’ is not capable of precise definition and is ‘inherently sensitive to context’”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36 at [18] (Flick, Reeves and O’Callaghan JJ). In Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 5) [2021] FCA 1645, Lee J at [6] summarised the relevant principles that apply to s 570(2)(b) of the Act, albeit in a case concerning failures to accept offers of compromise. There, his Honour held that “unreasonable” does not equate to “exceptional”: at [6]. Further, relying on Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [315] (Flick J), his Honour considered that the Court should “scrutinise the manner in which proceedings … are conducted to ensure that” (1) costs are not unreasonably incurred and (2) that the public interest in orderly and cost-effective administration of justice is not too readily put to one side: at [6]. Finally, his Honour noted that a lack of compliance with ss 37M and 37N of the FCA Act will inform the assessment of whether the discretion under s 570 of the Act is enlivened: at [6]. His Honour then affirmed the following statement of Mortimer J in Ryan at [66]:

Section 570, and the conditions it imposes on the Court’s general costs discretion under s 43 of the [FCA Act], is not a licence to parties to ignore the requirements of s 37M of the [FCA Act], nor the Court’s power to order costs against parties who fail to comply with their obligations under s 37N. The content of ss 37M and 37N, and parties’ obligations to assist the Court in achieving the objectives set out in s 37M, must be reconciled with access to justice provisions such as s 570(1). That reconciliation occurs through a focus on the reasonableness of parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put.

submissions

B.M.D.’s submissions

10    B.M.D. bases its entitlement to costs on s 570(2)(b) of the Act. It submits that it should be awarded its costs of and incidental to the Strikeout Application in the amount of $68,637.32. It accepts that the threshold imposed by s 570(2) of the Act is “high”, and the Court’s discretion to award costs “is to be exercised with caution”. However, its submission is that the CFMEU’s “unreasonable pleading and resistance” of the Strikeout Application caused B.M.D. to incur costs, and the circumstances warrant the exercise of the Court’s discretion to award costs. In this regard, B.M.D. relies on various pieces of correspondence annexed to the First Hegarty Affidavit, which are outlined below.

Correspondence between B.M.D. and the CFMEU

11    On 24 September 2024, B.M.D. wrote to the CFMEU identifying issues with non-admissions contained in the CFMEU’s defence. The first issue was that Mr Howard, the second respondent, had, according to B.M.D., deposed to conduct the subject of non-admissions in an affidavit affirmed on 21 May 2024 (Howard Affidavit). B.M.D. drew the CFMEU’s attention to paragraphs of the Howard Affidavit regarding several of the respondents’ attendance at the Project, noting that the relevant paragraphs in the CFMEU’s defence which were responsive to B.M.D.’s allegations in relation to these matters were subject to non-admissions. The second was that the CFMEU had material available to it, including body-worn camera footage, and materials referred to by its in-house solicitor and industrial officer, Mr Dalgleish, in a document filed in a proceeding in the Queensland Industrial Relations Commission (QIRC Proceeding) which included “organisers report back materials”, photos and video footage in relation to entries at the site of the Project. However, the CFMEU had not pleaded responsively to B.M.D.’s case. By this correspondence, B.M.D. indicated its intention to file an application to strike out the CFMEU’s defence or parts thereof.

12    On 18 October 2024, the CFMEU responded to the above correspondence enclosing, inter alia, its amended defence filed on 18 October 2024, which accepted B.M.D.’s complaints to the extent that they related to evidence contained in the Howard Affidavit. However, in relation to the CFMEU’s alleged failure to plead to matters in respect of which B.M.D. said it had materials available, the CFMEU stood by its non-admissions on the basis that:

(1)    As to the body-worn camera footage, this could not be understood by the CFMEU without the commentary of the person operating the camera, which in this case could only be given by a person claiming penalty privilege.

(2)    As to the complaint about documents identified in the QIRC Proceeding, the CFMEU stated that “in the absence of any sort of particularisation of such documents”, it could not understand the complaint or take the action suggested by B.M.D..

13    On 28 October 2024, B.M.D. indicated that it did not accept the CFMEU’s explanation for its “failure to properly plead to facts which are immediately ascertainable based on material in its possession”. As to the body-worn camera footage, B.M.D.’s position was that:

(1)    The CFMEU does not require the cooperation of the same persons who took the footage (being CFMEU officials) to identify its own personnel, what was said or done by them, or any date or timestamp therein.

(2)    It was instructed that several personnel with no claim of penalty privilege were present at the Project site on various occasions relevant to the allegations in its amended statement of claim.

(3)    Footage annexed to several affidavits filed in the proceeding by B.M.D. showed the CFMEU’s officials engaging in the conduct alleged against them in the proceeding.

(4)    In light of the above, and in combination with footage which the CFMEU already possessed, as well as “organiser report back materials”, photographs and videos, and the materials in the Howard Affidavit, it was difficult to see “how the CFMEU [could] assert that it [was] unable to understand the footage and [was] incapable of pleading to allegations relating to conduct shown” therein.

14    In response to the CFMEU’s assertion that without particularisation of the “organiser report back materials”, the CFMEU could not interrogate the material and properly plead to B.M.D.’s allegations in its statement of claim, B.M.D. attached the CFMEU’s “List of Issues and Questions to be Determined at Arbitration” filed in the QIRC Proceeding and extracted the following paragraph:

… The respondent will rely on the following CFMEU business documents filed in this proceeding: Affidavit of Dylan Howard - to be filed - (Howard affidavit) encompassing CFMEU business records, namely, CFMEU respondent organisers report back materials, photos, and video footage.

    (B.M.D.’s emphasis.)

15    B.M.D. stated that it anticipated Mr Dalgleish to have access to those documents and to be able to provide them on request. If it was claimed that such documents did not exist, B.M.D. said that it expected an affidavit from Mr Dalgleish deposing why they no longer existed, or alternatively why he informed both B.M.D. and the Queensland Industrial Relations Commission of their existence. B.M.D. asserted that the CFMEU had an obligation under ss 37M and 37N of the FCA Act to “properly review the relevant material and plead to the allegations” in B.M.D.’s statement of claim, and noted its concern that the pleadings the subject of non-admissions in the amended defence ought to be the subject of a responsive pleading.

16    On 30 October 2024, the CFMEU responded stating, inter alia:

(1)    It required the cooperation of individuals who had taken the relevant footage to identify its own personnel, what was said or done by them, or any date or timestamp therein because, inter alia, CFMEU personnel were “generally behind the camera and not depicted”, many of those depicted in the footage were not identified, and date and timestamps were frequently incorrect and could not be relied upon to plead.

(2)    It could identify the Project site, but not particular locations thereat.

(3)    It could not verify the accuracy or provenance of B.M.D.’s footage, and so could not use it to plead.

(4)    The reference to “organiser report back materials” in the document filed in the QIRC Proceeding was to photos and video footage; the CFMEU did not have any other documents answering the description of “organiser report back materials”.

(5)    There was no suggestion that the footage covered the entirety of the relevant events on all relevant days. Most likely, there were relevant events not captured by the footage, and the CFMEU could not file a complete and responsive pleading without instructions on this issue. Further, the events captured in the footage could not be placed in context without commentary from the person operating the camera. In these circumstances, it was impractical to prepare a complete and responsive pleading, as suggested.

(6)    It was because of the obligations under ss 37M and 37N of the FCA Act and the CFMEU’s representatives’ professional obligations that the CFMEU did not plead responsively to the relevant allegations in B.M.D.’s amended statement of claim.

(7)    It did not intend to file a further amended defence.

17    On 1 November 2024, B.M.D. responded to the above correspondence stating, inter alia, that firstly it did not accept the explanation offered in respect of “report back materials”, and that if the position were different to that articulated in the document filed in the QIRC Proceeding, this should be deposed to in an affidavit by Mr Dalgleish; otherwise, B.M.D. would ask the Court to draw Jones v Dunkel [1959] HCA 8; 101 CLR 298 inferences in relation to the existence of the further material mentioned by Mr Dalgleish. It additionally conveyed that it would file an application to strike out parts of the CFMEU’s amended defence.

18    By letter dated 7 November 2024, the CFMEU noted, but did not agree with, B.M.D.’s contentions in respect of Mr Dalgleish summarised above.

B.M.D. should be awarded its costs of the Strikeout Application

19    B.M.D. submits that the above indicates that between 24 September 2024 and 8 November 2024, B.M.D. sent “detailed correspondence identifying the defects” in the CFMEU’s pleading. These included (1) the amended defence’s non-responsiveness to the allegations in B.M.D.’s amended statement of claim, (2) that the CFMEU already possessed evidence enabling it to properly plead to the allegations, and (3) that the absence of evidence of Mr Dalgleish, who asserted the existence of relevant materials, risked the Court drawing a Jones v Dunkel inference against the CFMEU.

20    B.M.D. submits that the finding at [75] of the Strikeout Judgment, that the CFMEU fell “far short of what could reasonably be expected of a respondent who must plead in a proceeding”, speaks directly to the unreasonableness required by s 570(2) of the Act. It also submits that the CFMEU “acted unreasonably in the face of clear authority”, referring to Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 652, where at [6] – [7] the Court held as follows:

In my view, the CFMEU Defence is not adequate. It is not entitled to use the privilege of Mr Pearson and Mr Olsen so it does not otherwise have to comply with the pleading rules: Federal Court Rules 2011 (Cth), rr 16.02(1)(d), 16.03, 16.04, 16.07 and 16.08. See also r 16.41 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [31].

It is not for the Court to direct how its case should have been pleaded. The “do not know and cannot admit” plea is, of course, available: see r 16.07(3), but the form of the CFMEU pleading at present seems to exclude that option, especially as the three respondents are represented by the same solicitors. I note also that there are alleged to be other persons than Mr Pearson and Mr Olsen who were variously present when the asserted conduct was engaged in, and as persons acting for the CFMEU they may have provided the CFMEU or the solicitors with information about the allegations of the Director. I note also that the pleading by the CFMEU is not able to be used as an admission against either Mr Pearson or Mr Olsen. I note further that it is not claimed by the CFMEU that it has any privilege against a proper pleading on its behalf because it may be exposed to a monetary penalty.

21    B.M.D. directs attention to the fact that the Court specifically noted in that case that there were other persons who were not claiming privilege who could have given the CFMEU or their solicitors information regarding pleaded allegations.

22    B.M.D. submits that if the CFMEU had amended its defence “when first asked”, the Strikeout Application would not have been necessary. Instead, B.M.D. was required to incur costs to “obtain orders compelling compliance with the most basic pleading requirements”.

The Union’s submissions

23    The CFMEU submits that it should not be ordered to pay B.M.D.’s costs. It characterises B.M.D.’s submissions as being that (1) the circumstances satisfy the high bar imposed by s 570(2) of the Act, and (2) the case is sufficiently unusual that the appropriate order is for the CFMEU to pay B.M.D.’s costs on an indemnity basis.

24    The CFMEU relies on Ryan, where at [64] Mortimer J considered that the discretion “conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear”. It submits that the circumstances of (1) the second to twelfth respondents claiming penalty privilege, and (2) the relevant paragraphs of the amended defence concerning allegations about the conduct, and states of mind, of those respondents, the pleading of non-admissions and the resisting of the Strikeout Application should not be seen as constituting an unreasonable act or omission under s 570 of the Act. The CFMEU additionally submits that the fact that B.M.D.’s Strikeout Application initially sought to strike out the whole of the CFMEU’s defence, and not until B.M.D. filed its submissions did it tell the CFMEU that it would amend the Strikeout Application to seek that only certain paragraphs be struck out, is “important context” in determining the issue of costs under s 570 of the Act.

25    The CFMEU also seeks to distinguish Inspectorate on the basis that (1) other persons were alleged to have been present when the relevant conduct was alleged to have occurred, and (2) there was no order for costs in that case. Additionally, it points out that no invoices are annexed to the Second Hegarty Affidavit and no taxation of costs has occurred.

26    It further submits that even if this were a case in which the Court should order costs, it is not appropriate to order that B.M.D. be given a complete indemnity. In this regard it relies on the following remarks of Collier J in Carbone v James McConvill and Associates Pty Ltd [2019] FCA 1305 at [60], where her Honour made an order for indemnity costs:

I am satisfied that the historical (and ongoing) want of compliance by the respondents in this proceeding constitutes unreasonable acts or omissions, which have in turn caused the applicant to incur unnecessary costs within the meaning of s 570(2) of the Fair Work Act. I am also satisfied that the repeated non-compliance by the respondents with case management orders of the Court over many months, their concession of non-compliance, the absence of proper explanation by the respondents, the prejudice the applicant has suffered as a result, and the fact that the applicant has been required to incur the costs of this interlocutory application in an endeavour to make the respondents comply, constitute a special or unusual feature warranting an order for indemnity costs.

27    The CFMEU submits that such circumstances are not present here. It submits that if any costs order is made, it should be on a party-party basis as agreed or taxed.

consideration

28    B.M.D. did not refer me to any cases considering an order for costs under s 570 of the Act in the context of a strikeout application. I accept the CFMEU’s submission that Inspectorate did not concern any issue of costs.

Cases concerning s 570 of the Act in the context of a strikeout application

29    In Murdock v Virgin Australia Airlines Pty Ltd (No 3) [2024] FCA 227, Burley J considered an application for costs under s 570(2)(b) of the Act following a decision to strike out the entirety of a further amended statement of claim, in light of numerous paragraphs of that further amended statement of claim needing to be struck out: at [1]; see Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [160]. The respondents’ basis for the application for costs was that in correspondence prior to the hearing of the interlocutory applications, they had alerted the applicants to the deficiencies in their pleadings, but the applicants had unreasonably resisted making amendments. Further, they submitted that they were substantially vindicated in their applications: Murdock at [5].

30    Burley J considered that the respondents were not wholly successful in the arguments advanced in support of their applications, and noted that several points were raised at the hearing for the first time: at [7]. His Honour accepted, at [10], that there were aspects of the applicants’ pleadings what were “manifestly inadequate”, but considered that for reasons analogous to those considered persuasive in Tsilibakis v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048, the applicants’ conduct in defending the strikeout application was not unreasonable so as to enliven the discretion under s 570 of the Act.

31    In Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740, White J had dismissed the applicant’s application alleging adverse actions in contravention of s 340 of the Act, and alternatively a breach of his employment contract: at [4] – [7], [236]. One of the bases for the costs orders sought in Tsilibakis (No 2), which related to the adequacy of pleadings, was that the applicant had unreasonably delayed in addressing deficiencies in his statement of claim, with the relevant period of delay allegedly spanning approximately one month: at [10]. These deficiencies had been raised by letter by the respondent, which indicated that a strikeout application might be brought if the statement of claim were not amended. The applicant denied the deficiencies alleged, but provided further and better particulars: at [13]. By further letter, expressed to be a Calderbank v Calderbank [1975] 3 All ER 333 letter, the respondent, by its solicitors, maintained that the statement of claim was defective and attached a draft strikeout application which the respondents’ solicitors said they had instructions to file: at [14]. The applicant advised that he intended to amend his statement of claim and sent a proposed amended statement of claim to the respondent, which took the view that it was still deficient and filed its application. At the hearing, the respondent did not press the application, as the applicant conceded at the outset that there were deficiencies, and sought leave to file and serve an amended statement of claim, which was granted: at [15].

32    White J considered that there were “some deficiencies” in the original statement of claim which the applicant should have recognised at least from the respondent’s first letter. His Honour also considered that the applicant’s acceptance of the respondent’s criticisms of the original and proposed amended statements of claim, indicated that these criticisms had “some merit”: at [17]. His Honour further considered that the relevant delay was approximately two weeks: at [18]. The portions of Tsilibakis cited by Burley J in Murdock were [19] – [22], as follows:

In my opinion, the applicant should have recognised earlier that the proposed amended statement of claim still contained deficiencies. Had he done so, Transfield’s interlocutory application and the hearing on 19 March 2014 may have been unnecessary. At the costs hearing, the applicant’s counsel acknowledged that he could have appreciated the existence of the deficiencies earlier. I accept however, his explanation that it was not until he heard the critique by the respondent’s counsel that he appreciated the nature and extent of the shortcomings in the pleading.

However, I am not willing to characterise the applicant’s conduct as being the kind of unreasonableness to which s 570(2)(b) refers. In my opinion, the Court should be circumspect before doing so. It commonly occurs that applicants have difficulties in pleading appropriately an adverse action claim and an associated breach of contract claim. Experience also indicates that, despite inadequate pleadings, a matter can often proceed to trial without undue embarrassment to the opposing party. A somewhat robust approach to pleadings is often appropriate in actions of the present kind, and not that adopted in substantial commercial litigation between sophisticated and experienced litigants. There are some indications that Transfield may initially have taken this view in the present case, because on 18 December 2013, it allowed the matter to be listed for trial without raising any issue as to the adequacy for the applicant’s statement of claim. It is difficult for the Court to determine in retrospect the effect of inadequacies in a pleading on the opposing parties’ ability to proceed to trial.

These considerations suggest that the Court should be circumspect before allowing claims for costs under s 570 to descend into analyses of the adequacy or otherwise of a pleading and of the extent to which established shortcomings have had on the opposing party’s preparation. As I have said, criticisms of a party’s pleading are commonplace. Defects in a pleading are an ordinary incident in litigation.

In my opinion, this is an example of an applicant’s conduct which, while inadequate, should not be characterised as having the quality of unreasonableness warranting an order under s 570.

(Emphasis added.)

33    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Zinfra Contracting Pty Ltd [2025] FCA 1234, the applicant alleged breaches by the respondent of clauses of an enterprise agreement, in contravention of s 50 of the Act. The alleged breaches related to underpayment of overtime, travel time and meal allowances to the respondent’s employees: at [1]. The applicant’s case only named one employee, with the bulk of its case pleaded by reference to certain employees of the respondent as a class without identifying them individually: at [3], [8]. The applicant initially brought its case by way of an originating application and a concise statement, but following orders made at a case management hearing, filed a statement of claim: at [4]. The statement of claim pleaded the above-mentioned contraventions in relation to the named employee and in relation to the respondent’s employees generally as a class, and additionally pleaded an additional contravention regarding record-keeping in relation to employees generally: at [9]. The respondent filed a defence and, on the same day, an interlocutory application seeking to strike out paragraphs of the statement of claim: at [4].

34    The applicant explained that it had pleaded in this way because it “had no realistic means of obtaining” information or evidence regarding alleged breaches of the enterprise agreement in respect of each employee, nor the quantum of underpayments, “before commencing proceedings”: at [18] – [20]. Most of the alleged contraventions were based on the respondent’s own submissions in a Fair Work Commission dispute resolution proceeding, supplemented by information obtained from the applicant’s own members: at [21]. Goodman J struck out a large portion of the statement of claim, on the basis that it did not provide sufficient material facts for the Court to make a declaration of contravention in appropriate terms: at [61] – [64], [70], [76] – [77], [80] – [82], [84], [102] – [103], [116].

35    His Honour declined to award the respondent the costs of the application under s 570(2)(b) of the Act. The respondent’s asserted basis for an award of costs was that (1) following a case management hearing, the parties understood that the applicant would file a statement of claim identifying sufficient material facts in support of the alleged contraventions with respect to an identified employee or employees, and (2) upon receipt of the statement of claim, the respondent requested that the applicant file an amended version removing global allegations relating to employees generally, which the applicant refused to do: at [119]. His Honour was unable, on the evidence before him, to conclude that such a request was made, and in any event did not have evidence attesting to the terms of such a request, in particular whether the amendments sought were those captured in the application before him and whether the basis of the request was adequately explained: at [122].

36    His Honour accepted that the respondent’s complaints with the applicant’s concise statement, ventilated at the case management hearing, significantly overlapped with the complaints ventilated via the respondent’s strikeout application: at [124]. However, it was noted that the applicant, by its statement of claim, particularised the allegations in relation to the named individual above, in accordance with the respondent’s specific request at the case management hearing that it “articulate at least one member to … keep this in a situation where it’s not hypothetical”, and maintained global allegations in relation to employees as a class, which the respondent did not explicitly state should be removed. Further, his Honour noted that the applicant’s submissions in support of the pleadings had not been fully ventilated at the case management hearing. In these circumstances, his Honour considered that the applicant’s approach was “not so unreasonable as to enliven the possibility of a costs order under s 570(2)(b)” of the Act, such as to warrant the “exceptional circumstances” contemplated by s 570 of the Act: at [125] – [126].

There should be no order as to the costs of the Strikeout Application

37    For the following reasons, I consider that B.M.D. has not satisfied the Court that the CFMEU’s failure to amend its defence, and amended defence, was an unreasonable act under s 570(2)(b) of the Act.

38    In none of the above authorities was the party that succeeded on the strikeout application awarded its costs of that application. I accept, following the above-cited remarks in Tsilibakis, that as a general proposition the Court is slow to descend into considering the adequacy or otherwise of a party’s pleadings for the purpose of determining an application for costs under s 570 of the Act. Defects in pleadings, and criticisms thereof, are commonplace in litigation: Tsilibakis (No 2) at [21]. As Murdock indicates, merely inadequate pleadings, and even “manifestly inadequate” pleadings, do not of themselves enliven the jurisdiction to award costs under s 570(2)(b) of the Act: at [10]. Therefore, the costs jurisdiction of this Court under s 570 of the Act is not enlivened simply by pointing to a finding that the CFMEU’s pleadings were inadequate. Similarly, I consider that the existence of authority indicating that the manner of the CFMEU’s pleading was not adequate is also not sufficient, of itself, to enliven the costs jurisdiction. No submission was made by B.M.D. that the Court should, in this case, depart from this approach.

39    As to B.M.D.’s submission regarding the CFMEU’s “persistent refusal to properly address its non-admissions, despite being repeatedly placed on notice” by B.M.D., which it supports by reference to the correspondence annexed to the First Hegarty Affidavit, no submissions were made regarding Murdock and Zinfra, which I consider to be analogous to this case.

40    As in Murdock, in the present proceeding, correspondence passed between B.M.D. and the CFMEU regarding alleged deficiencies in the CFMEU’s defence (which the CFMEU amended in part in response). The Strikeout Application which was ultimately pressed by B.M.D. was successful; however, B.M.D. did not seek that the entire amended defence be struck out, as sought in the Strikeout Application’s original form. While no finding is made in relation to the portions of the CFMEU’s amended defence which were ultimately not sought to be struck out, B.M.D. did not persist in seeking, nor did it secure, the interlocutory relief originally foreshadowed in its correspondence with the CFMEU. No submission was made by B.M.D. as to why I should not treat this proceeding as analogous to Murdock where, inter alia, the respondents were held not to have been wholly successful in striking out the relevant pleadings: at [7]. In any event, I consider that while not determinative, B.M.D.’s choice in amending the Strikeout Application goes some way to indicating that the position adopted by the CFMEU was not unreasonable in these circumstances.

41    By contrast to Zinfra, here the terms of B.M.D.’s request that the CFMEU amend its defence and amended defence are ascertainable from the correspondence annexed to the Hegarty Affidavit. However, similarly to Zinfra, it is not apparent from that correspondence that B.M.D. particularised the objections to the CFMEU’s defence and amended defence ultimately pressed in the Strikeout Application. As already noted, B.M.D.’s amended Strikeout Application only came to light as an annexure to its written submissions filed on 13 December 2024, after the abovementioned correspondence had been exchanged. The evidence before the Court indicates that up to that point, the CFMEU had been generally on notice of B.M.D.’s intention to seek that its defence and amended defence, or parts thereof, be struck out, but not regarding the particular paragraphs that would ultimately be sought to be struck out (except for the paragraphs relating to parts of the Howard Affidavit, which the CFMEU amended). B.M.D. in its correspondence had, largely, simply objected to the CFMEU’s non-admissions and drawn its attention to the specific material which it said ought to enable it to plead responsively. In the absence of any submissions as to why I should treat this application differently from how the Court treated that in Zinfra, I am not persuaded that the CFMEU’s approach was “so unreasonable as to enliven the possibility of a costs under s 570(2)(b)” of the Act: at [125] – [126].

42    B.M.D. has not shown why the Court should adopt a course of action that is different from the decisions in Tsilibakis, Murdock and Zinfra. The precondition under s 570(2)(b) of the Act to the exercise of the Court’s costs jurisdiction is not met, and in these circumstances the appropriate order is that there be no order as to the costs of the Strikeout Application. Consideration of the basis and amount of any costs order therefore does not arise.

Associate:

Dated:    30 July 2026

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