Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 970

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 970

The obligation of a body corporate (here, a union) to make reasonable enquiries of its delegates or officers includes making such enquiries about facts pleaded concerning their involvement, unless the pleadings do not contain relevant allegations. Pleadings that avoid material facts by invoking the privilege against self-exposure to penalty must still reflect all information reasonably ascertainable by the party, including from those who do not themselves claim privilege.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Joseph Myles
Jurisdiction
Australia
Judgment Date
21 August 2017
Procedural Posture
Practice and Procedure / Interlocutory Application for Amendment and Strike Out
Outcome
Orders made granting leave to amend statement of claim and further amend defence, partially denying application to strike out certain paragraphs, with directions to file amended pleadings.
Legal Topics
Amendment of Pleadings, Privilege Against Self Exposure to Penalty, Reasonable Enquiry by Corporate Parties
Employment Law Industrial Relations Law Amendment of Pleadings Privilege Against Self Exposure to Penalty Reasonable Enquiry by Corporate Parties

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Joseph Myles

Second Respondent

Procedural Posture

Practice and Procedure / Interlocutory Application for Amendment and Strike Out

Legal Issues

  1. 1 Whether parties should have leave to amend the statement of claim and defence
  2. 2 Whether certain paragraphs of the defence should be struck out due to failure to plead material facts or reliance on privilege against self-exposure to penalty
  3. 3 Whether a union must make reasonable enquiries of its delegates in responding to allegations

Ratio Decidendi

The obligation of a body corporate (here, a union) to make reasonable enquiries of its delegates or officers includes making such enquiries about facts pleaded concerning their involvement, unless the pleadings do not contain relevant allegations. Pleadings that avoid material facts by invoking the privilege against self-exposure to penalty must still reflect all information reasonably ascertainable by the party, including from those who do not themselves claim privilege.

Court Disposition

Orders made granting leave to amend statement of claim and further amend defence, partially denying application to strike out certain paragraphs, with directions to file amended pleadings.

Orders

  • Within seven days, the applicant file and serve the amended statement of claim substantially in the form of the document handed to the Court at the hearing on 19 June 2017.
  • Within 30 days, the respondents file and serve their further amended defence consistent with the Court's reasons of today's date.