Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349

The application was dismissed because the proposed appeal did not have sufficient prospects: the interlocutory injunction determined no substantive right, restrained only illegal conduct, and was discretionary. The Court found no merit in the procedural unfairness argument because the applicants had addressed the issue of other sites and sought no adjournment to adduce further evidence. The findings that the asserted health and safety concerns were spurious and that the conduct was directed against Diploma supported the inference that the site was incidental and justified relief extending beyond 915 Hay Street. Even if the decision were wrong, no substantial injustice would result from...

Jurisdiction
Australia
Judgment Date
13 April 2010
Procedural Posture
Application for Extension of Time and Leave to Appeal From Interlocutory Discretionary Judgment / Motion Dated 8 February 2010 Dismissed
Outcome
Applicants' motion dismissed with costs.
Legal Topics
['extension of Time to Seek Leave to Appeal' 'leave to Appeal From Interlocutory Order' 'interlocutory Injunction' 'unlawful Industrial Action' 'discretionary Judgment']
['practice and Procedure' 'industrial Law' 'building and Construction Industry Regulation'] ['extension of Time to Seek Leave to Appeal' 'leave to Appeal From Interlocutory Order' 'interlocutory Injunction' 'unlawful Industrial Action' 'discretionary Judgment']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal From Interlocutory Discretionary Judgment / Motion Dated 8 February 2010 Dismissed

Legal Issues

  1. 1 ['Whether time should be extended for the applicants to file and serve a motion for leave to appeal from part of the judgment in WAD 106 of 2009.' 'Whether the interlocutory injunction decision was attended with sufficient doubt to warrant reconsideration by a Full Court.' 'Whether substantial injustice would result if leave were refused, supposing the decision to have been wrong.' 'Whether the injunction was too widely expressed by extending beyond 915 Hay Street, Perth to Diploma sites in Western Australia.' 'Whether the relief granted exceeded the scope of the relief sought or involved procedural unfairness.']

Ratio Decidendi

The application was dismissed because the proposed appeal did not have sufficient prospects: the interlocutory injunction determined no substantive right, restrained only illegal conduct, and was discretionary. The Court found no merit in the procedural unfairness argument because the applicants had addressed the issue of other sites and sought no adjournment to adduce further evidence. The findings that the asserted health and safety concerns were spurious and that the conduct was directed against Diploma supported the inference that the site was incidental and justified relief extending beyond 915 Hay Street. Even if the decision were wrong, no substantial injustice would result from...

Court Disposition

Applicants' motion dismissed with costs.

Orders

  • ["The applicants' motion dated 8 February 2010 be dismissed." 'The applicants pay the costs of the respondent to be taxed if not agreed.']