Cahill v Construction Forestry Mining and Energy Union

REASONS FOR JUDGMENT 1 The applicant, who is an Australian Building and Construction Inspector appointed pursuant to s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the Act") seeks interlocutory injunctions, pending the determination of the proceeding, against the respondents, in order to restrain the first and second respondents from preventing crane operators from working on a construction site at 90-100 Mount Street, Heidelberg in Victoria ("the site"). By virtue of s 49(6)(b) of the Act the applicant is an eligible person who may bring proceedings in respect of a contravention of a civil penalty provision of the Act. 2 The applicant relies on his own affidavit sworn on 1 March 2006 and the affidavits of Bryan Thomas Palmer sworn 1 March 2006; Anthony John Goss sworn 1 March 2006, 2 March 2006 and 6 March 2006; Michael John McKenzie sworn 3 March 2006; Gregory Raymond Moresi sworn 6 March 2006; and Ryan Anthony McMahon sworn 6 March 2006. The respondents did not file any affidavits in response. 3 The respondents took objection to parts of the first and second affidavit of Mr Goss (including exhibit PG 1), part of Mr Palmer's affidavit, and part of Mr McMahon's affidavit. For the reasons stated in argument, to the extent that paragraph 15 of Mr McMahon's affidavit is admissible under s 75 of the Evidence Act 1995 (Cth), I would admit it and paragraph 6 of Mr Goss's affidavit of 2 March 2006. I would not otherwise admit these paragraphs. I would uphold all the respondents' counsel's objections to Mr Goss's affidavit of 1 March 2006 and to paragraph 7 of his affidavit of 2 March 2006, as well as paragraph 10 of Mr Palmer's affidavit of 1 March 2006. I note that Mr Moresi also deposed to the matter referred to by Mr Palmer in paragraph 10 of his affidavit. 4 Counsel for the applicant submits that, by reason of the matters deposed to in these affidavits, there is a serious question to be tried that the respondents have engaged in contraventions of ss 38 and 43 of the Act; and that the balance of convenience favours the grant of the injunctions sought. Counsel for the respondents responded that the evidence did not establish the applicant's case and, in any event, the injunctive relief sought was too wide. What the evidence presently shows 5 For the purposes of this interlocutory application, the affidavits filed on behalf of the applicant showed the following: