Construction, Forestry, Mining and Energy Union v White

1. The motions the subject of the notice of motion filed on 16 August 2010 be dismissed.
2. The first applicant on the notice of motion pay the respondent's costs of the notice of motion. 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.

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

REASONS FOR JUDGMENT 1 There is pending in the Court a proceeding, numbered VID 698 of 2009, in which Michelle White ("Ms White") as applicant seeks penalties against the Construction, Forestry, Mining and Engineering Union ("the CFMEU") and nine individuals as respondents (in respect of all ten respondents, "the CFMEU parties"), pursuant to the Building and Construction Industry Improvement Act 2005 (Cth) ("BCII Act"). By an amended notice of motion handed up to the judge in whose docket the case has been managed on 9 August 2010, the CFMEU parties sought the striking out of a number of paragraphs of Ms White's statement of claim and, in the alternative, orders dismissing various claims for relief in the application. 2 The amended notice of motion was based on the invocation of the principle of double jeopardy. The fundamental contention was that to make allegations against the CFMEU parties simultaneously of contraventions of s 38 of the BCII Act as well as contraventions of s 43(1)(a) and s 43(1)(c) was to pursue the CFMEU parties for the same acts by means of two or more allegations of contraventions. 3 On 9 August 2010, the primary judge dismissed the notice of motion. Her Honour's reasons for judgment are published as White v Construction, Forestry, Mining and Energy Union [2010] FCA 835. By notice of motion filed on 16 August 2010, the CFMEU parties seek leave to appeal from her Honour's dismissal of the amended notice of motion. There is no doubt that the orders that her Honour made on 9 August 2010 constituted an interlocutory judgment, and that therefore leave to appeal would be required, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court of Australia Act"). 4 Paragraph 1 of the notice of motion of 16 August 2010 seeks in part leave to appeal from certain specified paragraphs of her Honour's reasons for judgment. To that extent, the motion could certainly not be granted. A right of appeal, whether by leave or otherwise, is in respect of a judgment, not in respect of the reasons for judgment or passages from the reasons for judgment. It is necessary only to consider whether leave to appeal ought to be granted in respect of her Honour's orders numbered 2 and 3, made on 9 August 2010, they being the orders dismissing the amended notice of motion and ordering the CFMEU to pay Ms White's costs of that motion. 5 Although drawing attention to the fact that s 24(1A) of the Federal Court of Australia Act confers an unfettered discretion, counsel for the CFMEU parties have invited consideration of her Honour's reasons for judgment in terms of the principles laid down in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The first of those principles is that there should be sufficient doubt about the correctness of the interlocutory judgment to warrant its reconsideration. The second is that there would be substantial injustice if the judgment were wrong and leave to appeal were to be refused. 6 In my view, the application for leave to appeal must fail on both of those principles. In the first place, as I read her Honour's reasons for judgment, her Honour was simply saying that it was not appropriate to determine at an interlocutory stage whether the principle of double jeopardy, or some similar principle, was applicable to the manner in which the allegations had been pleaded. At [4] of her Honour's reasons for judgment, she said: Because the elements of ss 38 and 43(1) are different, there is no double jeopardy problem at this stage of the case [Emphasis added] In the last sentence of [5], her Honour said: If the respondents are found to have committed multiple contraventions based on the same course of conduct, that circumstance must be considered at the sentencing stage to ensure that the respondents are not punished twice for the same actions [Emphasis added] 7 At [8] of her Honour's reasons for judgment, she again emphasised that any element of double punishment could be taken into account at the penalty stage. Her Honour also pointed to the real possibility that at the trial only one contravention would be established, and referred to the desirability of construing the provision when the factual complexion of the case is known. In my view, it is clear that her Honour was not making any final determination on the application of the principle of double jeopardy, or any similar principle. Her Honour was simply saying that it was appropriate to defer such decision until all of the evidence in the case became known in the course of the trial. 8 It is therefore quite impossible to contend, as counsel for the CFMEU parties attempted to do, that they would be estopped by her Honour's judgment from rearguing the same points at the trial. Her Honour's judgment is an interlocutory judgment. It could not give rise to an estoppel. Her Honour is not precluded from coming to the conclusion at the trial that there has been no infringement of any principle such as double jeopardy, nor from concluding that there has been such an infringement, but there ought to be only a finding of a single contravention made. Nor would any other judge be so constrained by reason of her Honour's interlocutory judgment. 9 It seems to me clear that the approach that her Honour took was the appropriate one. The determination of questions such as those raised by the CFMEU parties' attempted strike-out motion at an interlocutory stage was highly inappropriate in the management of the case. Arguments of the kind raised by the CFMEU parties ought properly to be determined at the trial, and not on an application to strike out pleadings. 10 In relation to the question whether the CFMEU parties would suffer substantial injustice if the interlocutory judgment were to be allowed to stand, the answer is again very clear. The practicality of the matter is that, at the trial, the evidence that will be led will be substantially the same, whether or not all of the allegations in the statement of claim are pursued. If at the end of the trial, in the judgment that follows, the CFMEU parties are wrongly found to have contravened more than one provision by reference to the same circumstances, they will have a right of appeal in respect of any such finding. Such an appeal would be targeted by reference to the actual findings made, and not theoretical by reference to the form taken by the pleadings. 11 To utilise the resources of the Full Court to determine this matter now would clearly be wasteful. There is a significant likelihood that the Full Court would take the same view as I understand the primary judge to have taken, namely that the matters the CFMEU parties wish to argue are matters properly to be argued at the trial, and subject to a right of appeal in the event that the Court should come to a conclusion unfavourable to them. 12 There is nothing else about the application for leave to appeal that suggests to me that leave to appeal ought to be granted. For these reasons, the application for leave to appeal should be dismissed. 13 Counsel for Ms White has sought an order for costs of the motion for leave to appeal. In the orders that the primary judge made on the amended notice of motion before her, her Honour made an order for costs only against the CFMEU. The CFMEU was ordered to pay the costs of Ms White of that notice of motion. Counsel for Ms White again seeks an order directed only to the CFMEU in respect of the application for leave to appeal. That order is not resisted by counsel for the CFMEU parties. 14 The orders I make are as follows: