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RULING ON NO CASE SUBMISSION BY 106TH RESPONDENT 1 The 106th respondent, Mark Johnson, has made a submission that he has no case to answer. This was made soon after the applicant closed its case and before any respondent called evidence. A similar no case submission advanced on behalf of the AMWU was withdrawn. Mr Johnson, as he is entitled to do in a civil penalty case, has formally elected not to give or call evidence. 2 It is not in doubt that the Court has power to hear and determine such a submission: Cahill v Construction Forestry Mining and Energy Union (No 2) (2008) ALR 223 at [2] and the cases there cited. 3 Mr Johnson was, admittedly, at all material times relevantly a member of the AMWU and a delegate of that Union and dealt with his employer CBI Construction Pty Ltd (CBI) in that capacity. 4 This proceeding concerns alleged unlawful industrial action in October 2008 at the Phase V Expansion Project on the Burrup Peninsula in Western Australia. CBI was under contract to Woodside Energy Limited in respect to that Project. The employees who took industrial action were CBI employees. Some were members of the AMWU, others were members of the CFMEU. 5 The applicant, the Australian Building and Construction Commissioner alleges in the most recent iteration of his statement of claim that Mr Johnson contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) which prohibits a person from engaging in unlawful industrial action. Declarations and pecuniary penalties are sought against him. 6 Apart from allegations of contravention, in his capacity as a CBI employee, it is also relevantly alleged (Statement of Claim (SOC) [65] that he has accessorial liability as having been knowingly concerned in or party to part of the unlawful industrial action in October 2008, and thereby contravened s 38(1) BCII Act. 7 This plea, so far as concerns Mr Johnson, is founded upon the allegations in SOC [26-29]. I have set them out below. I have prefaced them with the pleading in which sets out what is the pleaded "Claim" and "Threat". 21. On 1 October 2008, Windus accompanied by Upton: (a) represented to CBI that the Phase V Expansion Project had been completed (Representation); (b) demanded that CBI: (i) terminate the employment of the Employee Respondents covered by the AMWU Collective Agreement, (ii) pay out their consequential redundancy entitlements taxed at concessional rates and (iii) re-employ them for the S6 and VRL packages (Claim); and (c) threatened that those Employee Respondents would take industrial action if CBI did not meet the Claim (Threat). Particulars The Representation, the Claim and the Threat were made orally by Windus to Luskan and Guyer at the CBI premises in Karratha. . . . 26. On 13 October 2008, Upton, Johnson and Brown convened a meeting of a number of the Employee Respondents at the CBI site gate in Karratha. 27. Upton addressed that meeting in respect of the Claim and the Threat. 28. Later on 13 October 2008, at a meeting of Upton, Johnson and Brown with Luskan, Marcano and Stuurstraat: (a) Upton orally repeated the Claim; (b) Brown orally repeated the Claim; (c) Brown orally repeated the Representation; (d) Upton orally repeated the Threat; and (e) Upton stated that the Threat would be implemented by the Employee Respondents refusing to attend work for one week, returning to work for one day, then refusing to work for another week unless the Claim was met by CBI (Statement). 29. At that meeting, Upton, Johnson and Brown each, by his conduct, made the Representation, the Claim, the Threat and the Statement. Their conduct included their attendance at the meeting in association with each other and their failure to disassociate themselves or the AMWU or CFMEU respectively from what was said by Upton and Brown. 8 The evidence of Kelly Luskan, the CBI Administration Manager, was that Mr Johnson was present at a meeting at around 7.30 am on 13 October 2008 that also involved herself, the Project Manager Mr Marcano, the Construction Manager Mr Stuurstraat, two CFMEU officials Mr Brown and Mr Upton. She said that "everybody was pretty well putting in their own two bobs worth sort of thing. Everyone was yelling and screaming". However, she gave no evidence of any specific statement made by Mr Johnson. Mr Peter Stuurstraat likewise did not give evidence of anything said by Mr Johnson at that meeting. 9 Mr Stuurstraat gave evidence of a brief meeting with Mr Brown and Mr Johnson in the wet mess of the Bay Village accommodation in Karratha later on 13 October 2008. He said that he handed the notice, which was the application initiating proceedings in the Australian Industrial Relations Commission (AIRC), to Mr Johnson, who then asked "well how are we going to fly all these people to Perth to go to court". Mr Stuurstraat's said to Mr Johnson "that at the moment he (Johnson) is the only one who would be required to go if there was anything to happen because he is representing those guys" although he later acknowledged in chief that he was not confident of his recollection of what was said, or exactly what was said in that conversation. 10 I accept that there is no evidence that Mr Johnson convened the 13 October 2008 meeting of CBI employees as pleaded at SOC [26] or that he attended it. 11 As to the meeting with CBI management later in the morning of 13 October 2008, counsel for Mr Johnson submits that nothing in the evidence of what happened at that meeting provides any foundation for a finding that he was knowingly concerned in or party to the relevant October industrial action that occurred from 14 October 2008. Specifically, he submits that there is no evidence of any assertion, utterance, act or conduct on the part of Mr Johnson that could tenably be said to constitute a "making" of the Representation, the Claim or the Threat, or of the Statement, as pleaded at SOC [29]. 12 What is necessary for accessorial liability to be made out was set out by a Full Court of this Court in Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] as follows: Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct - the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words "party to, or concerned in" reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention. 13 Counsel for Mr Johnson submits that there is no evidence of any positive act of involvement or actual association, by Mr Johnson. He submits that here, there is no evidence of Mr Johnson undertaking any conduct, or having any involvement, beyond: (a) his mere existence at the meeting with CBI management of 7.30 am on 13 October 2008; and (b) receiving the application for the AIRC proceedings from Mr Stuurstraat and posing a query about how large numbers of employees could be flown for appearing. 14 The concluding submission on behalf of Mr Johnson is that none of that evidence is capable of sourcing findings of fact that Johnson, with knowledge of the essential elements of the other respondents' October industrial action, did or omitted to do any of the things within the ambit of s 48(2)(a)-(d) of the BCII Act. 15 Accepting that the case against Mr Johnson is not in respect to all of the October industrial action, nonetheless, I do not accept his no case submission. The evidence discloses that Mr Johnson, on the same day and shortly after a meeting on 13 October 2008 of CBI employees, including members of the AMWU, attended the meeting with Marcano, Stuurstraat, Brown and Upton. He was there, on his pleaded admission, as an AMWU delegate. The evidence of Marcano, if accepted, is capable of supporting a finding that Mr Upton in Mr Johnson's presence and hearing made the "Threat" alleged by the applicant [SOC 21(c)] in relation to the Claim [SOC 21(b)]. Mr Johnson did not, so far as concerns the AMWU, seek to disavow or in any way qualify the Threat. Moreover, the Threat, including as it did members of the AMWU, was put into effect the following day. Marcano's evidence is capable, if accepted, of proving that Johnson associated himself with the Claim and the Threat made at the instance, it might be inferred, not only of the CFMEU but also the AMWU and in particular by Johnson on its behalf. It is open on the evidence of Marcano to conclude that Upton, Johnson and Brown attended the 13 October meeting with Marcano and Stuurstraat with a unified purpose namely to make the Threat on behalf of the CBI employees who were members of the CFMEU and the AMWU. 16 I am satisfied that, in the circumstances, Mr Johnson's conduct as I have described it, as open on the evidence, is sufficient arguably to render him liable as an accessory to the relevant alleged unlawful industrial action under either or both of the limbs pleaded at SOC [65]. 17 I would for these reasons reject the no case submission. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.