Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077

Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077

Leave to appeal was refused because the primary judge had not finally determined the double jeopardy issue but had appropriately deferred it until trial, there was no sufficient doubt about the correctness of that interlocutory approach, and the CFMEU parties would not suffer substantial injustice because any wrongful findings of multiple contraventions based on the same circumstances could be addressed on appeal after trial.

Jurisdiction
Australia
Judgment Date
15 September 2010
Procedural Posture
Application for Leave to Appeal / Interlocutory Judgment; Leave to Appeal From Dismissal of Amended Notice of Motion Seeking Strike Out and Dismissal of Claims
Outcome
Application for leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'interlocutory Judgment' 'strike Out of Pleadings' 'statutory Penalties' 'double Jeopardy' 'costs']
['appeal' 'civil Procedure' 'building and Construction Industry Regulation'] ['leave to Appeal' 'interlocutory Judgment' 'strike Out of Pleadings' 'statutory Penalties' 'double Jeopardy' 'costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Interlocutory Judgment; Leave to Appeal From Dismissal of Amended Notice of Motion Seeking Strike Out and Dismissal of Claims

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from an interlocutory judgment dismissing an application to strike out paragraphs of a statement of claim and dismiss claims for relief.' 'Whether there was sufficient doubt about the correctness of the interlocutory judgment to warrant reconsideration.' 'Whether the CFMEU parties would suffer substantial injustice if the interlocutory judgment were wrong and leave to appeal were refused.' 'Whether double jeopardy arguments concerning alleged contraventions of s 38 and s 43(1)(a) and s 43(1)(c) of the BCII Act should be determined at an interlocutory strike-out stage or deferred until trial.']

Ratio Decidendi

Leave to appeal was refused because the primary judge had not finally determined the double jeopardy issue but had appropriately deferred it until trial, there was no sufficient doubt about the correctness of that interlocutory approach, and the CFMEU parties would not suffer substantial injustice because any wrongful findings of multiple contraventions based on the same circumstances could be addressed on appeal after trial.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['The motions the subject of the notice of motion filed on 16 August 2010 be dismissed.' "The first applicant on the notice of motion pay the respondent's costs of the notice of motion."]