A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466

A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466

Damages should be assessed for loss of net revenue reasonably expected had the contract been performed, subtracting amounts earned and variable costs, with the respondents being held liable for the actions constituting interference and statutory contraventions. Only one contravention was alleged for penalty purposes, and significant penalties were warranted given the seriousness and systematic failures by the Union and officials.

Parties
First Applicant: A & L Silvestri Pty Limited (ACN 052 514 799); Second Applicant: Nigel Hadgkiss; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Construction, Forestry, Mining and Energy Union (New South Wales Branch); Third Respondent: Peter Primmer; Fourth Respondent: Michael Lane; Fifth Respondent: David Kelly
Jurisdiction
Australia
Judgment Date
11 April 2008
Procedural Posture
Civil / Remedies and Final Orders Following Judgment on Liability
Outcome
Liability and remedies determined; orders made for damages, penalties, and preparation of final minute of orders
Legal Topics
Breach of S 170 NC of the Workplace Relations Act, Penalty Assessment, Breach of S 45 D of the Trade Practices Act, Damages for Interference With Contract, Union Vicarious Liability
Industrial Law Trade Practices Damages Breach of S 170 NC of the Workplace Relations Act Penalty Assessment Breach of S 45 D of the Trade Practices Act Damages for Interference With Contract Union Vicarious Liability

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Parties

A & L Silvestri Pty Limited (ACN 052 514 799)

First Applicant

Nigel Hadgkiss

Second Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Construction, Forestry, Mining and Energy Union (New South Wales Branch)

Second Respondent

Peter Primmer

Third Respondent

Michael Lane

Fourth Respondent

David Kelly

Fifth Respondent

Procedural Posture

Civil / Remedies and Final Orders Following Judgment on Liability

Legal Issues

  1. 1 Appropriate calculation of damages for breach of s 45D of the Trade Practices Act and interference with contract
  2. 2 Appropriate penalty for breach of s 170NC of the Workplace Relations Act by Union and officials
  3. 3 Number of contraventions for penalty purposes

Ratio Decidendi

Damages should be assessed for loss of net revenue reasonably expected had the contract been performed, subtracting amounts earned and variable costs, with the respondents being held liable for the actions constituting interference and statutory contraventions. Only one contravention was alleged for penalty purposes, and significant penalties were warranted given the seriousness and systematic failures by the Union and officials.

Court Disposition

Liability and remedies determined; orders made for damages, penalties, and preparation of final minute of orders

Orders

  • Respondents to pay first applicant damages of $23,000 plus interest from 22 October 2003 to date of judgment
  • Lane to pay a penalty of $1,800