Australian Building and Construction Commissioner v Abbott [2011] FCA 306

Procedural Posture

Civil Penalty Proceeding Concerning Alleged Unlawful Industrial Action / Ruling on No Case Submission by 106th Respondent After the Applicant Closed Its Case and Before Any Respondent Called Evidence

Legal Issues

1. 1 ['Whether the 106th respondent, Mark Johnson, had no case to answer in relation to alleged contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth).' 'Whether the evidence was capable of supporting a finding that Mark Johnson was knowingly concerned in or party to alleged unlawful industrial action in October 2008.' "Whether Mark Johnson's attendance at the 13 October 2008 meeting and failure to disavow the Threat could amount to association with the Claim and the Threat."]

Ratio Decidendi

The no case submission was rejected because the evidence, if accepted, was capable of supporting a finding that Johnson attended the 13 October 2008 meeting as an AMWU delegate, heard Upton make the Threat in relation to the Claim, did not disavow or qualify the Threat on behalf of the AMWU, and attended with Upton and Brown with a unified purpose to make the Threat on behalf of CBI employees who were members of the CFMEU and AMWU. That conduct was sufficient arguably to render him liable as an accessory to the alleged unlawful industrial action.

Court Disposition

No case submission rejected.

Orders

• ["The 106th respondent's no case submission is rejected."]