Australian Building and Construction Commissioner v McDermott [2017] FCA 504

Australian Building and Construction Commissioner v McDermott [2017] FCA 504

With the exception of the proposed Gava amendment, leave to amend the statement of claim is granted because (a) the amendments do not cause substantive injustice to respondents or infringe their penalty privilege, (b) any inconvenience or costs to the respondents can be ameliorated as they are granted leave to re-open their case if so advised, and (c) the public interest in effectively quelling the entire controversy between the parties outweighs the lateness and inconvenience of the amendments.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Michael McDermott; Second Respondent: Mark Gava; Third Respondent: James O'Connor; Fourth Respondent: Construction, Forestry, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
12 May 2017
Procedural Posture
Application to Amend Statement of Claim in Civil Remedy Proceedings / After Close of Parties' Cases on Evidence, Pre Final Submissions
Outcome
Leave to amend statement of claim and originating application granted in all respects except for the 'Gava amendment'; consequential orders for the filing and service of amended pleadings and leave for respondents to re-open their case if so advised.
Legal Topics
Leave to Amend Pleadings, Privilege Against Self Exposure to Penalty, Attribution of Conduct and State of Mind, Civil Penalty Proceedings
Employment Law Industrial Relations Practice and Procedure Leave to Amend Pleadings Privilege Against Self Exposure to Penalty Attribution of Conduct and State of Mind Civil Penalty Proceedings

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Michael McDermott

First Respondent

Mark Gava

Second Respondent

James O'Connor

Third Respondent

Construction, Forestry, Mining and Energy Union

Fourth Respondent

Procedural Posture

Application to Amend Statement of Claim in Civil Remedy Proceedings / After Close of Parties' Cases on Evidence, Pre Final Submissions

Legal Issues

  1. 1 Whether leave to amend the statement of claim should be granted after close of evidence
  2. 2 Whether amendments infringe or undermine the individual respondents' privilege against self-exposure to penalty
  3. 3 Whether a corporate respondent in civil remedy proceedings has an obligation to plead matters rendering applicant's case not maintainable

Ratio Decidendi

With the exception of the proposed Gava amendment, leave to amend the statement of claim is granted because (a) the amendments do not cause substantive injustice to respondents or infringe their penalty privilege, (b) any inconvenience or costs to the respondents can be ameliorated as they are granted leave to re-open their case if so advised, and (c) the public interest in effectively quelling the entire controversy between the parties outweighs the lateness and inconvenience of the amendments.

Court Disposition

Leave to amend statement of claim and originating application granted in all respects except for the 'Gava amendment'; consequential orders for the filing and service of amended pleadings and leave for respondents to re-open their case if so advised.

Orders

  • The name of the applicant in the proceedings be amended to 'Australian Building and Construction Commissioner'.
  • Leave to make the amendment marked in paragraph 16.1 of the proposed second amended statement of claim forming annexure ADS-5 to the affidavit Andrew Short sworn 23 February 2017 is refused.