John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 368

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 368

The second respondent was not granted leave to withdraw its admission. The fifth respondent was allowed to amend the defence and plead a positive case without waiving penalty privilege beyond matters actually pleaded. There was no obligation for the fifth respondent to provide discovery or witness statements as a result of pleading the positive case.

Parties
Applicant: John Holland Pty Ltd (ACN 004 282 268); First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers Union; Third Respondent: Troy Smart; Fourth Respondent: Graham Pallot; Fifth Respondent: Shane O'Reilly
Jurisdiction
Australia
Judgment Date
12 April 2011
Procedural Posture
Application to Amend Defence and Pre Trial Directions / Interlocutory
Outcome
Orders granted in part; costs awarded to the applicant.
Legal Topics
Amendment of Pleadings, Withdrawal of Admission, Penalty Privilege, Discovery, Affidavits
Practice and Procedure Amendment of Pleadings Withdrawal of Admission Penalty Privilege Discovery Affidavits

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Parties

John Holland Pty Ltd (ACN 004 282 268)

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers Union

Second Respondent

Troy Smart

Third Respondent

Graham Pallot

Fourth Respondent

Shane O'Reilly

Fifth Respondent

Procedural Posture

Application to Amend Defence and Pre Trial Directions / Interlocutory

Legal Issues

  1. 1 Whether leave should be granted to amend defences and rely on certain affidavits
  2. 2 Whether withdrawal of admission should be permitted
  3. 3 Whether amendment of defence waives penalty privilege

Ratio Decidendi

The second respondent was not granted leave to withdraw its admission. The fifth respondent was allowed to amend the defence and plead a positive case without waiving penalty privilege beyond matters actually pleaded. There was no obligation for the fifth respondent to provide discovery or witness statements as a result of pleading the positive case.

Court Disposition

Orders granted in part; costs awarded to the applicant.

Orders

  • Second respondent granted leave to amend defence in accordance with Exhibit TRK-3, subject to deletion of paragraph 4.
  • Fifth respondent granted leave to amend defence in accordance with Exhibit TRK-4.