CBI Contractors Pty Ltd v Abbott [No 2] (includes corrigendum dated 7 October 2009) [2009] FCA 1129 (24 September 2009)

Last Updated: 8 October 2009

FEDERAL COURT OF AUSTRALIA

CBI Contractors Pty Ltd v Abbott [No 2] [2009] FCA 1129

CORRIGENDA

CBI CONTRACTORS PTY LTD v BENJAMIN ABBOTT
WAD 230 of 2008

GILMOUR J
24 SEPTEMBER 2009 (CORRIGENDA 7 OCTOBER 2009)
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 230 of 2008

BETWEEN:	CBI CONTRACTORS PTY LTD Applicant
AND:	BENJAMIN ABBOTT & ORS Respondent
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Intevener

JUDGE:	GILMOUR J
DATE OF ORDER:	24 SEPTEMBER 2009 (CORRIGENDA 7 OCTOBER 2009)
WHERE MADE:	PERTH

CORRIGENDA

1. On page 5 of the reasons for judgment at para 17: delete the words ‘I am informed by Mr Andrew Duffy, AMWU Western Australia Branch President ("Duffy"), and verily believe’ and insert ‘Mr Thiel deposed...’
2. On page 6 of the reasons for judgment at para 18: delete the words “it is my belief” and insert “it is Mr Thiel’s belief ...”.
   

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated: 7 October 2009

FEDERAL COURT OF AUSTRALIA

CBI Contractors Pty Ltd v Abbott [No 2] [2009] FCA 1129

PRACTICE AND PROCEDURE – application by Australian Building and Construction Commissioner as statutory intervener pursuant to O 6 r 2 of the Federal Court Rules – to cease to be an intervener and joined as second applicant – proceedings between primary applicant and respondents settled – whether joinder or fresh proceedings appropriate – consideration of – public interest – practical and logistical difficulties – extensive overlap of fact and law - distinct regulatory role of Commissioner from private individual – motion granted.

Building and Construction Industry Improvement Act 2005 (Cth), ss 10, 71
Workplace Relations Act 1996 (Cth), s 3
Fair Work Act 2009 (Cth), s 3
Federal Court of Australia Act 1976 (Cth), s 23
Federal Court Rules, Order 6 rr 2, 9(b), 17

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1658; (2005) 226 ALR 247
Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311
Knight v Beyond Properties Pty Ltd (No. 2) (2006) FCA 192
Lord v AgReserves Australia Ltd (2006) FCA 598
Trade Practices Commission v Westco Motors (Distributors) Pty Ltd [1981] FCA 48; (1981) 58 FLR 384

CBI CONTRACTORS PTY LTD v BENJAMIN ABBOTT
WAD 230 of 2008

GILMOUR J
24 SEPTEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 230 of 2008

BETWEEN:	CBI CONTRACTORS PTY LTD Applicant
AND:	BENJAMIN ABBOTT & ORS Respondent
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Intevener

JUDGE:	GILMOUR J
DATE OF ORDER:	24 SEPTEMBER 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The Australian Building and Construction Commissioner cease to be an intervener in the proceeding pursuant to Order 6 rule 9(b) of the Federal Court Rules.
2. The Australian Building and Construction Commissioner be joined to the proceeding as a Second Applicant pursuant to Order 6 rule 2 of the Federal Court Rules.
3. Costs be in the cause.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 230 of 2008

BETWEEN:	CBI CONTRACTORS PTY LTD Applicant
AND:	BENJAMIN ABBOTT & ORS Respondent
AND	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Intevener

JUDGE:	GILMOUR J
DATE:	24 SEPTEMBER 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The motion is brought by the Australian Building and Construction Commissioner (Commissioner) who seeks orders that he cease to be an intervener in the proceedings pursuant to Order 6 r 9(b) of the Federal Court Rules (Rules) and that he be joined in the proceedings as second applicant pursuant to Order 6 r 2 of the Rules. The motion is supported by the affidavit of Matthew James Kelleher sworn 20 July 2009. Mr Kelleher is a lawyer who has the carriage of these proceedings within the firm of solicitors acting for the solicitor. All of the respondents, some 214 of them, were served with the substantive application.
2. The motion is opposed by 113 of those respondents. They are those who entered an appearance. It was sought to be opposed by the proposed fourth to seventh respondents who are set out in the proposed amended application which is an annexure to Mr Kelleher’s affidavit. I refused leave to those respective respondents to be heard on the motion. The respondents who were heard rely upon an affidavit sworn by Sharon Lynette Thiel on 21 August 2009. It is also opposed by four of the individual respondents in addition to the 113 I have mentioned. They are separately represented, having now entered an appearance. An affidavit has been filed on their behalf sworn by their solicitor, Mr John Fiocco, on 24 September 2009.
3. The applicant does not, in effect, make any submissions on the motion. The proceedings relate to alleged unlawful industrial action taken by workers, bound by one or other of two collective agreements, during October 2008 on the Burrup Peninsula in Western Australia. The action occurred over six days. It related to the respondents’ claim that they had become entitled to an end-of-project redundancy payment which they had not been paid. The proceedings were brought by the employer, CBI Constructors Pty Ltd, who sought relief, including injunctive relief, under the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and the Workplace Relations Act 1996 (Cth) (WR Act) as well as s 23 of the Federal Court of Australia Act 1976 (Cth).
4. Pecuniary penalties were sought under each of the BCII Act and the WR Act. The Commissioner intervened pursuant to s 71 of the BCII Act in October 2009.
5. Section 71 of the BCII Act provides:

(1) The ABC Commissioner may intervene in the public interest in a civil proceeding before a court in a matter that:

(a) arises under this Act; or

(b) arises under the Independent Contractors Act 2006 , the FW Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and involves:

(i) a building industry participant; or

(ii) building work.

(2) If the ABC Commissioner intervenes in a proceeding under subsection (1), the ABC Commissioner is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.

6. Importantly, it provides that the Commissioner is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party. In that sense, whilst described as someone who may intervene in the public interest, the characterisation of the Commissioner as an intervener should not be thought to be synonymous with the orthodox use of that word in litigation. Plainly, the statutory powers vested in him by s 71 of the BCII Act are far wider than those attendant upon an ordinary intervener.
7. The proceedings between the present applicant and the respondents have settled. The background to that settlement and what ensued following settlement are set out in the written outline of submissions filed by the applicant:
   2. The Applicant reached agreement with Gibson & Gibson, acting on behalf of the represented Respondents, in relation to a Minute of Proposed Consent Orders (Consent Orders) to resolve the matter in respect of them. The Applicant also proposed to resolve the matter in respect of the Respondents for whom no appearance has been filed by filing a Notice of Discontinuance (Notice of Discontinuance).
      
   3. On 16 July 2009, the Applicant provided the Consent Orders and Notice of Discontinuance to Clayton Utz (Clayton Utz), solicitors for the Intervener.
      
   4. On 17 July 2009, Clayton Utz wrote to Mallesons Stephen Jaques (Mallesons), solicitors for the Applicant, advising that the Intervener would file a Notice of Motion (Notice of Motion) seeking orders that their client cease to be an Intervener and be added as a Second Applicant in the Proceedings. The correspondence also requested that Mallesons not file the Consent Orders or the Notice of Discontinuance until the Notice of Motion had been heard by the Court.
      
   5. On 21 July 2009, Clayton Utz served Mallesons with the Notice of Motion and Affidavit in Support of the Notice of Motion.
      
   6. On 22 July 2009, after advising Clayton Utz of its intention to do so, Mallesons filed the Consent Orders and Notice of Discontinuance with the Court under a covering letter which confirmed that the Consent Orders and Notice of Discontinuance would not be addressed until the Notice of Motion had been dealt with by the Court.
      
   7. On 24 July 2009, Clayton Utz wrote to Mallesons advising that it had requested that the Court not act on the Consent Orders or the Notice of Discontinuance until after the Notice of Motion is heard.
      
   8. On 28 July 2009, Mallesons wrote to Clayton Utz advising that it understood that the Consent Orders and Notice of Discontinuance would not be dealt with until after the Notice of Motion had been dealt with.
      
   9. Since the Consent Orders were agreed, we are instructed that the Project has been completed and all the Applicant’s employees have left the site.
      
8. Although settlement has occurred in the way there described, the applicant remains as the applicant of record in the proceedings. The respondents oppose the orders sought in the notice of motion. They submit that the proposed amended application is a fresh and distinct application and one which seeks relief against new respondents, namely, the fourth to seventh respondents.
9. They say, prima facie, that such a fresh and distinct application ought to be commenced, if at all, by way of discrete proceedings rather than by way of joinder to an application which is no longer to be pursued by its primary applicant. They submit that the present application and the proposed application each concern highly significant industrial regulatory litigation alleging four distinct categories of breach of industrial prescriptions against an extremely large number of respondents. Yet the industrial disputation, they say, which has given rise to the present application has been, in substance, resolved.
10. The nature and ambit of the proposed application, viewed in light of that industrial reality, gives rise to a range of conceptual and practical considerations which, they submit, ought to influence and confine the approach that this Court takes to the exercise of its discretion to permit a joinder. The respondents acknowledge, correctly in my view, that the Court’s power to order the joinder exists under, at least, Order 6 r 2(b) of the Federal Court Rules and that this power confers a broad discretion. They do not dispute that the proposed application would concern a relevant justiciable controversy and hence a “matter” arising under one or more laws of the Commonwealth Parliament sufficient to confer jurisdiction on this Court pursuant to, at least, s 39B(1A)(c) of the Judiciary Act 1903 (Cth).
11. The respondents also acknowledge that the proposed application would arise, at least broadly, out of a similar set of alleged factual circumstances that are the subject of the present application. It appears to be common ground that the present application has been, in substance, resolved in respect of those parties; that the project which provided the industrial setting for the conduct giving rise to the present application has been completed; and that all of the applicant’s employees working on the project have left the site. The respondents point to the fact that the Commissioner elected not to commence primary proceedings of the kind commenced by the applicant, but rather sought merely to intervene in the application.
12. They emphasised that despite the resolution of the present application and that some seven months have elapsed since the commencement of the proceedings, the Commissioner now wishes to change his status so as to bring distinct but related proceedings which include fresh allegations as against two bodies corporate, which are registered industrial organisations, as well as five individuals, who are at least for some purposes union officers or agents. They say that the reasoning and rationale behind the Commissioner’s desire to change his role and maintain related but distinct regulatory proceedings have not been placed before the Court. They also say, and I think correctly, that the proposed application would if initiated give rise to a large, procedurally complex civil action.
13. If liability were disputed, even by only some respondents, a lengthy trial would almost certainly be required. Nonetheless, the respondents acknowledge, again correctly in my view, the very clear public interest which the Commissioner carries as the regulator in the industrial field in this country. They submit, however, that without denying the proper and legitimate functions of the Commissioner as enacted in s 10 of the BCII Act, its regulatory role must sensibly be tempered by an appreciation of the industrial reality that disputes, often highly significant ones, are frequently resolved by the primary parties to those disputes.
14. They submit that there is no foundation before the Court for it to infer that there remains any material public interest in seeking pecuniary penalties and declarations against a large number of individual employees, an industrial organisation and some of that organisation’s officers with respect to a dispute that has now been settled. They submit that in relation to the exercise of the Court’s discretion, the following considerations are relevant in light of its scope, purpose and the applicable subject matter.
15. First, in a meaningful and practical sense, the respondents would be placed in jeopardy for a second time of findings of statutory contravention. It is accepted that no findings have been made by any court or tribunal so as to raise the possibility of any issue estoppel.
16. Second, fairness to potential litigants proposed to be the subject of a joinder is a material consideration to be taken into account. It is here they say that the potential practical identities identified in the Thiel affidavit assume particular significance.
17. I am informed by Mr Andrew Duffy, AMWU Western Australia Branch President ("Duffy"), and verily believe that as of 20 August 2009 there are no AMWU respondents employed at the worksite.
18. Given that over the course of seven months in the proceedings the AMWU was unable to obtain instructions from all AMWU respondents, and that this was in the context of the majority of AMWU respondents being present on the worksite at the commencement of the proceedings, it is my belief that there are numerous potential practical and logistical difficulties involved in the AMWU Respondents responding to the ABCC proceedings.
19. The potential practical and logistical difficulties referred to in para 18 above include the AMWU respondents either:

(i) residing interstate;
(ii) being employed on alternative projects within Western Australia;
(iii) being employed on alternative projects interstate;
(iv) residing in an unknown location;
(v) being employed in an unknown location:
(vi) no longer being members of the AMWU; or
(vii) a combination of 17(i) to 17(vi).

20. By contrast, they say that the assertions advanced by the Commissioner carry minimal weight. They contend that the fact that Gibson & Gibson are the respondents’ present solicitors of record in these proceedings as brought and maintained by the current applicant leads to no necessary assumption that that firm will remain instructed by and will be able to receive meaningful instructions in a practical sense from the respondents.
21. In light of the matters deposed to by Ms Thiel, there exists, they submit, a realistic possibility that for some, if not many, of the respondents Gibson & Gibson will not be in a position to feasibly obtain ongoing instructions so as to remain on the record if the proposed application is brought by the Commissioner.
22. Third, they submit that the Court ought be reluctant to favour joinder as simply a quicker alternative to any possible commencement of fresh proceedings and that enforcement proceedings brought or maintained by a government regulator as opposed to a private individual or a corporation of this scale, scope and seriousness should in the normal course of events be initiated by a discrete application, not as a procedural variation on a previous proceeding which has been substantially resolved.
23. They submit that the appropriateness of the commencement and maintenance of any set of court proceedings is a highly important aspect of the executive performance of the Commissioner; and that the evaluation of that performance by the public and the media forms part of its accountability to the people of Australia, which evaluation and accountability are highly important components of the information available to the electors regarding the Commonwealth Government’s overall performance for when they come to exercise their electoral choice and otherwise participate in the democratic process. They say that monitoring of these decision making processes can be impeded and their evaluation compromised where important regulatory litigation can be commenced other than via the orthodox initiating process.
24. Fourth, the respondents say that for them to now be placed in peril of the remedies foreshadowed in the proposed application gives rise to a very real disincentive to settlement of the extant industrial dispute. The settlement of existing disputes wherever possible is a critical aspect of the contemporary approach to both industrial relations and civil litigation generally. They refer to s 3 of the Workplace Relations Act as to the principal object of that Act and more specifically to sub-s 3(d) and 3(h), together with s 3 of the Fair Work Act 2009.
25. The legislative background in short is as follows. The intervener, the Commissioner, is appointed pursuant to s 9 of the BCII Act, with functions under s 10 of the BCII Act of:

(a) monitoring and promoting compliance with the Act;

(b) investigating suspected contraventions by building industry participants of the Act; and

(c) instituting, or intervening in, proceedings in accordance with the Act.

26. Under s 3 of the BCII Act, the legislation relevantly aims to:

(a) promote respect for the rule of law;

(b) ensure respect for the rights of building industry participants;

(c) ensure that building industry participants are accountable for their unlawful conduct; and

(d) provide effective means for investigation and enforcement of relevant laws.

27. It can be seen then that the role of the Commissioner is quite distinct in its public role from that of any private individual, in this case, the role and interests of the present applicant. The Commissioner is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party under the provisions of s 71(2) of the BCII Act.
28. Order 6 r 17 of the Rules, accordingly, does not apply to the present circumstances; that is to say, leave of the Court was not required for the Commissioner to intervene in these proceedings. Order 6 r 2 of the Rules provides that:

2 Joinder of parties generally

Two or more persons may be joined as applicants or respondents in any proceeding:
(a) where:
(i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court gives leave so to do.

29. A clear practical overlap between claims with substantially the same courses of conduct by the same people is required: A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1658; (2005) 226 ALR 247. In my opinion, the criteria in Order 6 r 2(a) have been met in this case. There is a strong overlap of fact and law. The respondents did not submit otherwise. In any event, apart from Order 6 r 2(a), Order 6 r 2(b) gives the Court discretion to join an applicant.
30. Rule 2(b) operates both where there is an application for a joinder in proceedings not falling within r 2(a) and where there is an application for joinder after commencing the proceedings otherwise within that provision: Trade Practices Commission v Westco Motors (Distributors) Pty Ltd [1981] FCA 48; (1981) 58 FLR 384. The Court’s discretion to order a joinder under r 2(b) is not limited by r 2(a): Knight v Beyond Properties Pty Ltd (No. 2) (2006) FCA 192. There Lindgren J agreed with Wilcox J, who said in Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311 at 314:

The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.

31. Leave may be given under Order 6 r 2(b) nunc pro tunc where proceedings have already been commenced.
32. The Court’s task in giving leave is to identify the advantages and the disadvantages to the parties as a whole in terms of the efficient use of the Court’s resources, having regard to the commonality of issues raised by each claim and to the Court’s ability to case manage the proceedings so as to minimise disadvantages: Lord v AgReserves Australia Ltd (2006) FCA 598.
33. I accept that there may be difficulties in obtaining instructions on the part of Gibson & Gibson or whoever may represent the respondents in due course.
34. Presently, no notice of withdrawal of appearance has been filed in relation to any of the 113 respondents for whom that firm appear, nor has leave been sought for that purpose. I accept the submission of the Commissioner that those respondents are already party to the application and that service has already been accepted on their half by Gibson & Gibson and are represented through that firm on this motion. The position is, so far as the respondents are concerned, that relief which the Commissioner will seek is effectively the same as that sought by the present applicant in its application. There is a clear logistical advantage to the Commissioner and one which is referable to the question of costs, at least that it may effect service on the 117 respondents who have entered an appearance.
35. It is correct, on its face, to say that the motion is confined to altering the status of the Commissioner from intervener to second applicant in the present application.
36. Nonetheless, it is plain, as appears from the affidavit evidence of Mr Kelleher, that the Commissioner intends to seek leave to amend the application and to join additional respondents. The Commissioner says that this is not a relevant consideration for the exercise of my discretion. I disagree. It seems to me that it would be artificial to ignore the future prospective nature of the proceedings in respect of which the motion is brought. Nonetheless, it seems to me that the proposed amendments, whilst relevant to the consideration of exercising my discretion, are no obstacle to joinder. The extensive relevant overlap of fact and law remains.
37. Counsel for the four respondents separately represented submits that Order 6 of the Federal Court Rules does not contemplate substitution of parties. He submits that this, in effect, is what is proposed by the motion. Whilst it may be that Order 6 does not contemplate substitution, the fact is that the present applicant remains on the Court record. I do not regard it as relevant to the present motion that should the motion be acceded to that the present applicant will file a notice of discontinuance. Otherwise, those four respondents adopted the submissions of the other respondents.
38. I do not regard the supposed delay on the part of the Commissioner in bringing this motion as, in truth, delay at all. The Commissioner moved swiftly to file the motion when provided by the solicitors for the applicant with the consent orders and notice of discontinuance on 16 July 2009. The motion was foreshadowed in correspondence to the applicant’s solicitors the following day and the motion was filed and served a few days later on 20 July 2009. There was a weekend in between 16 and 20 July.
39. The complexity of the litigation is not, I think, a relevant matter. This would be the case whether there was a joinder or fresh proceedings. I regard it as an important matter that it may well prove very difficult to effect service on the respondents were the Commissioner forced to institute fresh proceedings. The respondents are no longer employed by the applicants and, on the evidence, have moved even to different parts within Australia. I do not regard the fact of settlement as of any great weight. The settlement involves the parties but not the Commissioner. The Commissioner has a quite distinct public regulatory role. Had the proceedings gone to trial he would have participated in every sense, both during the trial and were liability established, he no doubt would have been heard on the question of penalty.
40. I infer, as I indicated in argument, that the decision of the Commissioner to intervene under the statutory power conveyed by virtue of s 71 was the result of a view that the relief sought by the present applicant was, in substance, no different to the relief which the Commissioner would have sought had he instituted fresh proceedings. That seems to me to be an eminently reasonable approach to have been taken by the Commissioner rather than to have instituted separate proceedings. Once it was made plain to the Commissioner that the private proceedings would no longer be pursued he acted, as I have said, swiftly to continue with the clear public interest role which his office carries. He should be entitled to do so irrespective of the private settlement. I do not consider that there can be any doubt about that.
41. The proposed joinder would not, in my opinion, cause injustice to any of the parties. Indeed, the respondents against whom the Commissioner will seek declarations and orders for penalties will not be affected by whether the declarations and orders are sought in this proceeding, should the motion be granted, or through a new proceeding. In all of the circumstances it seems to me to be the most efficient and cost effective way forward for the parties and the Court that the motion be granted. There will be orders in terms of the motion.
    

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated: 2 October 2009

Counsel for the Applicant:	Mr P Swinger
Solicitor for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondents:	Mr R L Hooker
Solicitor for the Respondents:	Gibson & Gibson
Counsel for the 35th, 38th, 155th and 204th Respondents:	Mr J Fiocco
Solicitor for the 35th, 38th, 155th and 204th Respondents:	Fiocco Lawyers
Counsel for the Intervener:	Mr K M Pettit SC
Solicitor for the Intervener:	Clayton Utz

Date of Hearing:	24 September 2009
Date of Judgment:	24 September 2009