Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCA 592

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCA 592

Both the original and proposed amended statement of claim failed to comply with the rules of pleading in civil penalty proceedings, as they lacked precision, improperly included prolix allegations of evidence rather than clear material facts, and did not adequately specify facts constituting the alleged contravention of s 50 of the Fair Work Act 2009 (Cth); therefore, the pleading should be struck out, and leave to amend in the current form refused, but the applicant should be given one final opportunity to file a fresh, compliant pleading.

Parties
Applicant: Construction, Forestry, Mining and Energy Union; Respondent: BHP Coal Pty Ltd
Jurisdiction
Australia
Judgment Date
14 May 2015
Procedural Posture
Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Interlocutory Application to Strike Out Pleadings and for Leave to Amend Statement of Claim
Outcome
Statement of claim struck out; leave to file amended statement of claim refused; costs reserved; applicant granted opportunity to file fresh statement of claim.
Legal Topics
Pleadings, Strike Out Application, Precision of Pleading in Penal Proceeding, Civil Penalties, Contravention of S 50 Fair Work Act 2009
Practice and Procedure Industrial Law Pleadings Strike Out Application Precision of Pleading in Penal Proceeding Civil Penalties Contravention of S 50 Fair Work Act 2009

Case Brief

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Parties

Construction, Forestry, Mining and Energy Union

Applicant

BHP Coal Pty Ltd

Respondent

Procedural Posture

Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Interlocutory Application to Strike Out Pleadings and for Leave to Amend Statement of Claim

Legal Issues

  1. 1 Whether the original and proposed amended statement of claim should be struck out under Federal Court Rules 2011 (Cth) r 16.21
  2. 2 Whether leave should be granted to file an amended (effectively fresh) statement of claim
  3. 3 Whether the pleadings sufficiently and precisely allege material facts constituting a contravention of s 50 of the Fair Work Act 2009 (Cth) in civil penalty proceeding

Ratio Decidendi

Both the original and proposed amended statement of claim failed to comply with the rules of pleading in civil penalty proceedings, as they lacked precision, improperly included prolix allegations of evidence rather than clear material facts, and did not adequately specify facts constituting the alleged contravention of s 50 of the Fair Work Act 2009 (Cth); therefore, the pleading should be struck out, and leave to amend in the current form refused, but the applicant should be given one final opportunity to file a fresh, compliant pleading.

Court Disposition

Statement of claim struck out; leave to file amended statement of claim refused; costs reserved; applicant granted opportunity to file fresh statement of claim.

Orders

  • The statement of claim filed by the applicant on 23 February 2015 is struck out.
  • Leave to file the amended statement of claim, sought to be filed by the applicant on 28 April 2015, be refused.