Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union [2009] FCA 194

Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union [2009] FCA 194

The CFMEU was not guilty of the first charge since the evidence did not establish beyond reasonable doubt that it failed to remove vehicles as required by the specific terms and timing of the court's order. However, the CFMEU was guilty on the second charge in respect of incidents on 19 and 23 February 2009, as the evidence established beyond reasonable doubt that the union, through its officers and with its authority, engaged in conduct amounting to actual obstruction of access to the site, in breach of the clear and unambiguous court orders.

Parties
Applicant: Bovis Lend Lease Pty Ltd; Respondent: Construction Forestry Mining and Energy Union
Jurisdiction
Australia
Judgment Date
04 March 2009
Procedural Posture
Civil / Interlocutory/contempt Determination
Outcome
First charge dismissed; Second charge established only for 19 and 23 February 2009 incidents
Legal Topics
Contempt Proceedings, Clarity of Court Orders, Attribution of Liability to Unions, Adequacy of Charge Statements, Industrial Injunctions
Industrial Law Contempt of Court Practice and Procedure Contempt Proceedings Clarity of Court Orders Attribution of Liability to Unions Adequacy of Charge Statements Industrial Injunctions

Case Brief

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Parties

Bovis Lend Lease Pty Ltd

Applicant

Construction Forestry Mining and Energy Union

Respondent

Procedural Posture

Civil / Interlocutory/contempt Determination

Legal Issues

  1. 1 Whether the orders of Marshall J were clear and unambiguous enough to found contempt proceedings
  2. 2 Whether the statements of charge provided adequate particulars to meet requirements of procedural fairness
  3. 3 Whether the CFMEU committed contempt by failing to comply with the orders regarding removal of vehicles and obstruction of site access

Ratio Decidendi

The CFMEU was not guilty of the first charge since the evidence did not establish beyond reasonable doubt that it failed to remove vehicles as required by the specific terms and timing of the court's order. However, the CFMEU was guilty on the second charge in respect of incidents on 19 and 23 February 2009, as the evidence established beyond reasonable doubt that the union, through its officers and with its authority, engaged in conduct amounting to actual obstruction of access to the site, in breach of the clear and unambiguous court orders.

Court Disposition

First charge dismissed; Second charge established only for 19 and 23 February 2009 incidents

Orders

  • It be declared that the respondent is not guilty of the charge which was filed with the applicant's notice of motion dated 20 February 2009.
  • The further hearing of the applicant's notice of motion dated 24 February 2009 be adjourned to 10:15 am on 12 March 2009.