Australian Building & Construction Commissioner v Abbott

AND THE COURT ORDERS THAT:

1. Determination of any pecuniary penalties which may be imposed upon the: (a) Defaulting Respondents pursuant to s 49(1)(a) of the BCII Act for their contravention of s 38 of the BCII Act; (b) 19th respondent for his contravention of clauses 8(3), 9 and 39(14) of the AMWU Agreement, pursuant to s 719 of the WR Act; and (c) 110th, 113th, 195th and 201st respondents for their contravention of clauses 8(3), 9 and 39(14) of the CFMEU Agreement, pursuant to s 719 of the WR Act, be adjourned to the penalty hearing of the proceeding on a date to be fixed (Penalty Hearing).
2. Liberty to the applicant to apply on such notice as a judge shall allow to discharge or vary the above Order.
3. Costs including costs of today be reserved to the penalty hearing. 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 Federal Law Search on the Court's website.

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

BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Third Respondent to Two Hundred & Twenty Second Respondent

JUDGE: GILMOUR J DATE: 8 APRIL 2011 PLACE: PERTH

Introduction 1 On 24 March 2011 I made declarations variously that the 19th, 110th, 113th, 195th and 201st respondents (Defaulters) had contravened various provisions of the Building and Construction Industry Improvement Act (2005) (Cth), the Workplace Relations Act 1996 (Cth) as well as certain clauses of collective agreements. 2 I gave short oral reasons at that time for making those declarations. I now set out those reasons which have been edited but not as to alter their substance. 3 There are five notices of motion seeking orders pursuant to Order 35A of the Federal Court Rules in respect of the 19th, 110th, 113th, 195th and 201st respondents (Defaulters). 4 The applicant relies on the following affidavits: (a) affidavit of Allen George Mitchell sworn 2 June 2010; (b) affidavit of Ian Douglas Fraser sworn 3 June 2010; (c) affidavit of Christopher Brandon Grice sworn 12 June 2010; (d) affidavit of Brett Roland Roberts sworn 3 June 2010; (e) affidavit of Brett Roland Roberts sworn 11 March 2011; (f) affidavit of Duncan Gilbert sworn 21 March 2011; and (g) affidavit of Anthony Gaskell sworn 22 March 2011.

Service 5 In respect of the 19th respondent: (a) on 20 July 2010, the 19th respondent was served personally with the Originating Process in the proceeding; (b) the times for the 19th respondent to file a notice of appearance and defence have expired and the 19th respondent has failed to do either; and (c) on 17 March 2011, the 19th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011. Service was effected by the documents being left at his Irving quarters at Gap Ridge Village, Madigan Road, Karratha. 6 In respect of the 110th respondent: (a) on 19 May 2010, the 110th respondent was served personally with the Originating Process in the proceeding; (b) the times for the 110th respondent to file a notice of appearance and defence have expired and the 110th respondent has failed to do either; and (c) on 15 March 2011, the 110th respondent was served personally with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011. 7 In respect of the 113th respondent: (a) on 28 May 2010, the 113th respondent was served personally with the Originating Process in the proceeding; (b) the times for the 113th respondent to file a notice of appearance and defence have expired and the 113th respondent has failed to do either; and (c) on 15 March 2011, the 113th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011, by leaving the documents with a female person at his last known address, that person having said she knew the 113th respondent. 8 In respect of the 195th respondent: (a) on 12 June 2010, the 195th respondent was served personally with the Originating Process in the proceeding; (b) the times for the 195th respondent to file a notice of appearance and defence have expired and the 195th respondent has failed to do either; and (c) on 15 March 2011, the 195th respondent was served with the notice of motion for orders in default and supporting affidavit, together with a letter bringing to his attention that the proceedings were to commence on 21 March 2011, by leaving the documents with a person, who was apparently over the age of 16 years, at his last known address, that person having said he knew the 195th respondent. 9 In respect of the 201st respondent: (a) on 24 March 2010, the 201st respondent was served personally with the Originating Process in the proceeding; (b) the time for the 201st respondent to file a notice of appearance and defence has expired and the 201st respondent has failed to do either; and (c) on 15 March 2011, the 201st respondent was served personally with the notice of motion for orders in default and supporting affidavit, together with a letter bringing notice of the proceeding that commenced on 21 March 2011 to his attention. 10 I am satisfied that there has been due notice of the documents set out above. It seems that it was probably unnecessary to give notice of the notices of motion in the circumstances: British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665. 11 Order 35A rule 3(2)(c) FCR may be invoked upon an event of default of a kind prescribed in O 35A r 2(2) FCR, 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) 244 ALR 300 at [42]. See also: Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57]; Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [6]-[7] per Jacobson J; Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J; Macquarie Bank Ltd v Seagle (2005) 146 FCR 400. The facts set out under paras 5(b), 6(b), 7(b) and 8(b) above constitute events of default pursuant to O 35A r 2 (2)(b) of the Federal Court Rules. 12 In this case, the judgment now sought is in respect of less causes of action than claimed under the Statement of Claim, and penalty is to be commensurate with penalty to be imposed on respondents who have the assistance of legal representation, and whose circumstances are otherwise indistinguishable. Accordingly, no injustice will be occasioned by entering default judgment had the notices of motion not been served.

Declaratory relief 13 The applicant also seeks declaratory relief as against the Defaulters based on deemed admissions of the facts pleaded in the Amended Statement of Claim. 14 In Dataline (2006) 236 ALR 665 at [57]-[59], Kiefel J observed: [57] … The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the Court on the facts and the declarations may give the impression that there has. [58] The power to grant declarations (s 21 Federal Court Act 1976 (Cth)) sic is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). [59] It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration … Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct constitutes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made 'upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court'. 15 Dataline (2006) 236 ALR 665 was followed by Mansfield J in Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) (2007) 240 ALR 120. His Honour noted the previous reluctance to base declarations on admissions, but nonetheless approved and adopted the reasons of Kiefel J in Dataline (2006) 236 ALR 665 and made declarations on the basis of deemed admissions. 16 In Hadgkiss v Aldin & Ors (No 2) at [23], I too granted declaratory relief "predicated by a statement that they are made on the basis of deemed admissions." 17 I am satisfied that there is a proper basis, in each case, for making the relevant declarations, and I will do so. 18 The issue of penalty in each case, if any, will be deferred until the penalty hearing in respect of those other respondents who have admitted liability. 19 I will also reserve the question of costs on the motions to that hearing. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

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