Hadgkiss v Aldin (No 2) (includes Corrigendum dated 7 February 2008) [2007] FCA 2069 (20 December 2007)

NIGEL HADGKISS v GORDON WILLIAM ALDIN
WAD 185 OF 2006

GILMOUR J
20 DECEMBER 2007 (CORRIGENDUM 7 FEBRUARY 2008)
PERTH

BETWEEN:	NIGEL HADGKISS Applicant
AND:	GORDON WILLIAM ALDIN First Respondent ROBERT PETER ALIVOJVODIC Second Respondent BRUCE JAMES ALLSOPP Third Respondent STEPHEN BANKS Fourth Respondent RICHARD JOHN BECK Fifth Respondent NATHAN RYAN BENNETT Sixth Respondent ROBERT BIONDILLO Seventh Respondent ROBERT NEIL BRADBURY Eighth Respondent JOHN FRANCIS BRADLEY Ninth Respondent JAMIE BREARLEY Tenth Respondent TIM HUGH BROWN Eleventh Respondent GREG JAMES BROWN Twelfth Respondent MATHEW BRUCE Thirteenth Respondent MICHAEL BURKE Fourteenth Respondent JOHN JOSEPH BYRNE Fifteenth Respondent DAVID BARRIE CAMERON Sixteenth Respondent TERRY ALLAN COLLINS Seventeenth Respondent MARTIN RASHLEIGH CORBETT Nineteenth Respondent GRAEME COWLING Twentieth Respondent ROBERT JOHN COYLE Twenty First Respondent ROBERT WILLIAM CRAMPTON Twenty Second Respondent CHRISTOPHER ALBERT CRAWFORD Twenty Third Respondent GLENN JAMES DANIELS Twenty Sixth Respondent STUART JOHN DAVIES Twenty Seventh Respondent DRONZO LAURIE DE BARI Twenty Eighth Respondent KEVIN JOHN DONLAN Twenty Ninth Respondent JAMES PATRICK DOYLE Thirtieth Respondent JOHN ENGEL Thirty First Respondent MICHAEL EVANS Thirty Second Respondent GERARD PATRICK FARHI Thirty Third Respondent ALESSANDRO FORTE Thirty Fourth Respondent PAUL DESMOND GLEESON Thirty Fifth Respondent DAVID JOSEPH GOLDING Thirty Sixth Respondent SHANE ROBERT GREAVES Thirty Seventh Respondent DAVID HACKETT Thirty Ninth Respondent MATT CHARLES HARVEY Fortieth Respondent ZACHARY JAMES HAYWOOD Forty First Respondent LAWRENCE HENRY HEALEY Forty Second Respondent CHARLIE GRAHAM ISAACS Forty Third Respondent CLINTON LARKIN Forty Fifth Respondent WAYNE ROBERT LEE Forty Sixth Respondent KEVIN JOSEPH LIDDY Forty Seventh Respondent MATHEW DAVID LOTHIAN Forty Eighth Respondent COLIN HENRY LUFF Forty Ninth Respondent IAIN MACBETH Fiftieth Respondent RONALD JOHN MARSH Fifty First Respondent FRANK MCMAHON Fifty Second Respondent DZEMAL JAMES MEMIC Fifty Third Respondent JEREMY KANE MILLS Fifty Fifth Respondent LINDSAY JOHN MORISON Fifty Sixth Respondent DARREN RAYMOND MORRIS Fifty Seventh Respondent RICHARD MICHAEL MULCAHY Fifty Eighth Respondent MICHAEL JOHN MULCAHY Fifty Ninth Respondent DAVID MARTIN MURPHY Sixtieth Respondent PETER DAVID NAPPER Sixty First Respondent ANTHONY PETER NICHOLS Sixty Second Respondent ANDREW JOHN O'DONNELL Sixty Fourth Respondent STEPHEN FRANCIS O'SULLIVAN Sixty Sixth Respondent JOHN PES Sixty Eighth Respondent MALCOLM STANLEY PETERS Sixty Ninth Respondent FIORELLO REITANO Seventieth Respondent BRENT DAVID ROTHSAY Seventy First Respondent JOSHUA GERALD SCOTT Seventy Third Respondent ALAN CHARLES SEMPLE Seventy Fourth Respondent DANIEL SPIZZIRRI Seventy Fifth Respondent JOHN GRAHAM STORRIE Seventy Seventh Respondent JOHN ANTHONY TERRIACA Seventy Ninth Respondent GARY FREDERICK WAGSTAFF Eightieth Respondent JYE MCNAMARA WALSH Eighty First Respondent BRETT HAROLD ANDREWS Eighty Third Respondent STEVEN BARNETT Eighty Fourth Respondent NATHAN JAY BENNETT Eighty Fifth Respondent NEIL LENARD BENNETT Eighty Sixth Respondent ANDREW PATRICK BOWDEN Eighty Seventh Respondent DEAN JASON COYLE Ninetieth Respondent SKYE MAREE COYLE Ninety First Respondent ALEX IAN CROMB Ninety Second Respondent ROSS ALAN CURBY Ninety Third Respondent STEPHEN RAY EATON Ninety Fourth Respondent MATTHEW BRUCE FERGUSON Ninety Fifth Respondent ERROL JOSEPH FERGUSON Ninety Sixth Respondent MARK PHILLIP GALLI Ninety Seventh Respondent SCOTT JOHN GRAY Ninety Ninth Respondent WAYNE CLIFFARD HAWKINS One Hundredth Respondent SCOTT ANTHONY HEAP One Hundred and First Respondent DEAN MICHAEL MCBRIDE One Hundred and Second Respondent MICHAEL JOHN MORAN One Hundred and Third Respondent NEMO MOUCHEMORE One Hundred and Fourth Respondent DARREN LEE REIHER One Hundred and Fifth Respondent LEE ELLIOTT SODEN One Hundred and Sixth Respondent MAKSI VUJCIC One Hundred and Seventh Respondent
JUDGE:	GILMOUR J
DATE OF ORDER:	20 DECEMBER 2007 (CORRIGENDUM 7 FEBRUARY 2008)
WHERE MADE:	PERTH

INDUSTRIAL LAW – breaches of s 38 Building and Construction Industry Improvement Act 2005 (Cth) by unlawful industrial action – breaches of order made under s 127 (pre-reform) Workplace Relations Act 1996 (Cth) by unlawful industrial action – penalties suspended in part – whether declarations should be made by reference to deemed admissions.

Building and Construction Industry Improvement Act 2005 (Cth), s 38
Workplace Relations Act 1996 (Cth), s 127

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 discussed
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 applied
Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815 applied
British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417 referred to
Hadgkiss v Aldin [2007] FCA 2068 referred to
Macquarie Bank Ltd v Seagle [2005] FCA 1239; (2005) 146 FCR 400 cited
Wu v Avin Operations Pty Ltd [2006] FCA 36 cited

NIGEL HADGKISS v GORDON WILLIAM ALDIN
WAD 185 OF 2006

GILMOUR J
20 DECEMBER 2007
PERTH

UPON THE ADMISSIONS WHICH THE 2^nd, 3^rd, 83^rd AND 92^nd RESPONDENTS ARE DEEMED TO HAVE MADE CONSEQUENT UPON THEIR NON-COMPLIANCE WITH ORDERS OF THE COURT IT IS DECLARED THAT:

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

1 I have earlier delivered judgment in relation to all of the other respondents in these proceedings: Hadgkiss v Aldin [2007] FCA 2068. The reasons for judgment here should be read together with those other reasons for judgment, which provide the relevant background, both factually and legally, to the disposition of the two motions before the Court.

2 The Notices of Motion seek orders pursuant to Order 35A of the Federal Court Rules. The Notices of Motion are in respect of Robert Peter Alivojvodic, Bruce James Allsopp, Brett Harold Andrews and Alex Ian Cromb, respectively the second, third, eighty-third and ninety-second respondents ("the defaulters"). I have had the benefit of very detailed and helpful written submissions from which I have drawn, in compiling these reasons.

4 The applicant relies on the following affidavits:
(a) affidavit of Marcus Thomas Clarke sworn 13 November 2007;
(b) two affidavits of Joseph Smeets each sworn 9 November 2007;
(c) affidavit of Ian Fraser sworn 24 October 2007;
(d) affidavit of Joseph Smeets sworn 14 February 2007.
(e) affidavit of Mark Williams sworn 28 February 2007; and
(f) affidavit of Jason Sparrowhawk sworn 14 February 2007.

I have had regard to these in making the following findings of fact in respect of each of the respondents.

9 Order 35A rule 3 (2)(c) of the Federal Court Rules is predicated upon an event of default of a kind prescribed in O 35A r 2(2), and contemplates that judgment may be given against a respondent for relief to which "the applicant appears entitled on the statement of claim" and which the Court is satisfied it has "power to grant". In determining the relief, O 35A permits regard to be had to the "face of the statement of claim"; no evidence need be adduced to prove the factual contentions; allegations of fact in the statement of claim are deemed admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [42]; Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57]; Macquarie Bank Ltd v Seagle [2005] FCA 1239; (2005) 146 FCR 400. The findings set out at paragraphs 4(b) and 6(b) above constitute events of default pursuant to O 35A r 2(2)(b). The findings set out at paragraphs 5(b) and 7(b) above constitute events of default pursuant to O 35A r 2(2)(a).

10 The Statement of Claim, in the case of each of these respondents, pleads all the material facts sufficient to establish the breaches of s 38 of the BCII Act and breach of the s 127 order under the WR Act and thereby rendering them liable to the imposition of penalties under s 49(1)(a) of the BCII Act and s 178 of the WR Act respectively. The pleaded facts also sustain the making of relevant declarations.

11 The eighty-third and ninety-second respondents may not have been aware of the hearing on 14 November 2007 (albeit that, in the case of the eighty-second respondent, he has been personally served with the Notice of Motion for orders in default and affidavit in support). Although it is still open to the applicant to move for default judgment in the circumstances (these two defaulters having been served with the initiating process and being relevantly in default) an issue does arise as to whether, in the Court’s discretion, it is just to enter judgment in default.

12 The applicant acknowledges the general reluctance of courts to permit a party to obtain orders in circumstances where notice of the application for those orders had not been given to the other parties affected. However it is submitted by the applicant that the position is different in relation to defaulters.

13 As a matter of principle, where it can be shown that a party has been served with the originating process, and if that party thereafter declines to take any of the steps required as a result of such service (such as entering an appearance, filing a defence or attending at directions hearings), the party may (and often ought) be regarded as having waived his or her rights and as having, in effect, consented to judgment on the basis of the facts alleged in the statement of claim.

14 Indeed, if it is not possible to proceed against a defaulter under O 35A unless notice of the hearing has been given, that would enable a defaulter to avoid judgment if he or she could avoid being personally served with notice of the application for orders under O 35A, notwithstanding the clear default in complying with standard procedural steps or orders of the court.

15 In British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417, an application was made for judgment under Order 35A. It appears that this application may have been made by a notice of motion, which was made returnable instanter, and Stone J made orders ‘pursuant to Order 19 rule 2(2)(d) that service of this Notice of Motion be dispensed with’. These orders were made despite the fact that neither of the respondents had filed a notice of appearance, or had appeared before the Court at any stage.

16 Stone J went on to find that the respondents were in default under O 35A r 2(2)(a) and 2(2)(c), and proceeded to enter judgment against them, notwithstanding that there was no evidence that they were aware of the hearing seeking default judgment. Notice of that hearing had not been personally served, as Order 19, r 4 would have required, if not dispensed with.

17 To similar effect, Kiefel J’s analysis of the effect of Order 35A, at first instance, in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [46], appears to assume implicitly that notice of the default judgment proceedings is not necessary unless the relief ultimately being sought is different to that expressed in the statement of claim. Her Honour indicated that the touchstone ought to be fairness in the conduct of litigation, with what is required potentially differing from case to case.

18 I have found that the eighty-third and ninety-second respondents have been served with the originating process and have made no, or no proper, effort, to respond to the Court’s processes. No injustice would be occasioned by entering default judgment against them.

19 I have in these proceedings previously made declarations in relation to the other respondents by reference to Statements of Agreed Facts: Hadgkiss v Aldin [2007] FCA 2068.

20 The defaulters are deemed to have made admissions of the facts pleaded in the Statement of Claim. Declaratory relief as against the defaulters in those circumstances is not materially different to the position of the other respondents who are signatories to the Statements of Agreed Facts.

21 Older precedent reflects a certain reluctance to grant declaratory relief in the absence of facts found on evidence. Contemporary authority in this court reflects a strong disinclination to follow those earlier decisions. In Dataline, Kiefel J, reviewed much of that earlier authority. Her Honour observed at [57]-[59]:

22 To similar effect is the judgment of Mansfield J in Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815, which was, like Dataline, a case where judgment was given on the basis of deemed admissions under O 35A. Having noted the historical reluctance to base declarations on admissions, his Honour went on to approve and adopt the statements of Kiefel J in Dataline and to exercise his discretion to make declarations on the basis of those deemed admissions, at [13]-[16].

23 Accordingly I propose to make the declarations sought, predicated by a statement that they are made on the basis of deemed admissions.

24 I propose that, for the same reasons, the same penalties be imposed on each of the defaulters, as was imposed in relation to the main body of respondents identified in Schedule 2 to my earlier reasons: Hadgkiss v Aldin [2007] FCA 2068.

26 Costs ought follow the event. Although the WR Act is a no costs jurisdiction, there is no such provision in the BCII Act. Agreement was reached with the primary group of respondents who admitted contraventions that there would be no order as to costs. No such agreement has been reached with these respondents. The defaulters have failed to either file an appearance or a defence in the proceedings and the applicant has incurred additional legal costs as a result.

27 The applicant therefore seeks an order as to costs against each defaulter. On a party/party basis, it is estimated that the costs of the applicant in respect of the defaulters, including the costs of the Notices of Motion and supporting affidavits and the hearing on 14 November 2007, will exceed $33,000. However a costs order of $5,000 is sought in respect of each defaulter, a total of $20,000, which, on my view, is a conservative figure in the circumstances.

28 I propose then to order that each defaulter pay the costs of the applicant fixed at $5,000.

Counsel for the Applicant:	Mr R J H Maidment SC with Mr R L Hooker and Dr S Donaghue

Solicitors for the Applicant:	Lavan Legal

Counsel for the 2^nd, 3^rd, 83^rd and 92^nd Respondents	Mr P Rozen

Solicitors for the 2^nd, 3^rd, 83^rd and 92nd Respondents:	Jeremy Noble, Barristers & Solicitors

Date of Hearing:	14 November 2007

Date of Judgment:	20 December 2007

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 185 OF 2006

JUDGE:	GILMOUR J
DATE:	20 DECEMBER 2007
PLACE:	PERTH

Federal Court of Australia

Hadgkiss v Aldin (No 2) (includes Corrigendum dated 7 February 2008) [2007] FCA 2069 (20 December 2007)