John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 1032

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 1032

The CFMEU’s defence did not contravene the Rules as non-admissions regarding truth or falsity where information is unknown are permissible; CFMEU is not obliged to undertake inquiries from individuals who claim penalty privilege. Production of the contracts and subcontracts referred to in the statement of claim is required, but only on a confidential basis to solicitors and counsel for the respondents in respect of those terms relevant to the pleadings.

Parties
Applicant: John Holland Pty Ltd; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Mick Buchan; Third Respondent: Joseph McDonald; Fourth Respondent: Matthew Waters; Fifth Respondent: Seamus Byrne; Sixth Respondent: Ray McMurrich; Seventh Respondent: Matt Balde; Eighth Respondent: Peter Joshua; Ninth Respondent: Steve McCann; Tenth Respondent: Tawa Harris; Eleventh Respondent: Joe Stavlic; Twelfth Respondent: Phil Kennedy; Intervener: Director of the Fair Work Building Industry Inspectorate
Jurisdiction
Australia
Judgment Date
23 September 2014
Procedural Posture
Interlocutory Application / Reasoned Decision on Strike Out/production/particulars Applications
Outcome
Applicant's interlocutory application dismissed; orders made for limited confidential disclosure of contracts to respondents' legal representatives; respondents' interlocutory application adjourned.
Legal Topics
Strike Out Application, Pleading Rules, Penalty Privilege, Disclosure of Contracts, Confidentiality Orders, Interference With Contractual Relations, Unlawful Industrial Action
Practice and Procedure Industrial Law Tort Law Strike Out Application Pleading Rules Penalty Privilege Disclosure of Contracts Confidentiality Orders +2 more

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Parties

John Holland Pty Ltd

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Mick Buchan

Second Respondent

Joseph McDonald

Third Respondent

Matthew Waters

Fourth Respondent

Seamus Byrne

Fifth Respondent

Ray McMurrich

Sixth Respondent

Matt Balde

Seventh Respondent

Peter Joshua

Eighth Respondent

Steve McCann

Ninth Respondent

Tawa Harris

Tenth Respondent

Joe Stavlic

Eleventh Respondent

Phil Kennedy

Twelfth Respondent

Director of the Fair Work Building Industry Inspectorate

Intervener

Procedural Posture

Interlocutory Application / Reasoned Decision on Strike Out/production/particulars Applications

Legal Issues

  1. 1 Whether CFMEU’s defence should be struck out for reliance on penalty privilege of others
  2. 2 Whether CFMEU obliged to make relevant inquiries to inform its pleading
  3. 3 Whether contracts and subcontracts are relevant and should be disclosed

Ratio Decidendi

The CFMEU’s defence did not contravene the Rules as non-admissions regarding truth or falsity where information is unknown are permissible; CFMEU is not obliged to undertake inquiries from individuals who claim penalty privilege. Production of the contracts and subcontracts referred to in the statement of claim is required, but only on a confidential basis to solicitors and counsel for the respondents in respect of those terms relevant to the pleadings.

Court Disposition

Applicant's interlocutory application dismissed; orders made for limited confidential disclosure of contracts to respondents' legal representatives; respondents' interlocutory application adjourned.

Orders

  • Applicant's interlocutory application dated 28 March 2014 dismissed.
  • Respondents to bring forward a minute of proposed orders reflecting these reasons in relation to their interlocutory application dated 3 April 2014.