Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462

Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462

Section 45(1) of the Building Industry Improvement Act 2005 (Cth) is not confined to discrimination between parties to a single contract; the 'second person' does not need to have a contractual relationship with the 'first person'. The court must apply an objective test and consider whether a reasonable participant in the building industry would have foreseen that the action taken would discriminate against an affected entity, such as Services. MDC's motion for summary dismissal was rejected because, on the evidence, Helal had a reasonable prospect of success under the broader reading of s 45(1).

Parties
Applicant: Linda Helal; Respondent: McConnell Dowell Constructors (Aust) Pty Ltd (ACN 002 929 017)
Jurisdiction
Australia
Judgment Date
22 December 2010
Procedural Posture
Civil / Interlocutory Motion for Summary Dismissal
Outcome
Respondent's motion dismissed
Legal Topics
Statutory Interpretation, Discrimination Under Building Industry Improvement Act, Summary Judgment Procedure
Employment Law Construction Law Statutory Interpretation Discrimination Under Building Industry Improvement Act Summary Judgment Procedure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

Linda Helal

Applicant

McConnell Dowell Constructors (Aust) Pty Ltd (ACN 002 929 017)

Respondent

Procedural Posture

Civil / Interlocutory Motion for Summary Dismissal

Legal Issues

  1. 1 Whether s 45(1) of the Building Industry Improvement Act 2005 (Cth) covers indirect discrimination against an entity with which the alleged discriminator has no contractual or other relationship
  2. 2 Proper construction of s 45(1) of the Building Industry Improvement Act 2005 (Cth)
  3. 3 Application of s 31A of the Federal Court of Australia Act 1976 (Cth) for summary judgment

Ratio Decidendi

Section 45(1) of the Building Industry Improvement Act 2005 (Cth) is not confined to discrimination between parties to a single contract; the 'second person' does not need to have a contractual relationship with the 'first person'. The court must apply an objective test and consider whether a reasonable participant in the building industry would have foreseen that the action taken would discriminate against an affected entity, such as Services. MDC's motion for summary dismissal was rejected because, on the evidence, Helal had a reasonable prospect of success under the broader reading of s 45(1).

Court Disposition

Respondent's motion dismissed

Orders

  • The respondent's motion on notice dated 9 September 2010 be dismissed.
  • The applicant's costs of and incidental to the said motion be that applicant's costs in the cause.