mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292
Outcome: cited
no-case submission had two limbs. The first limb concerned the proper construction of the definition of "building industrial action" in s 36(1) of the Building and Construction Industry Improvement Act . The Union and Mr Mates argued that, in order to constitute "building industrial action" within paras (b) and (c) of the definition in s 36(1) , the action in question must be that of employees in respect of their work. It followed, so they said, that there was an evidentiary hiatus in Mr Cahill's case because Mr Cahill had not adduced any evidence that any "ban, limitation or restriction" had been imposed by employees in respect of the work to which the ban, limitation or restriction related: see below at [9]. For the reasons previously stated, however, the Union and Mr Mates failed to persuade me that their construction should be adopted. I accepted that, if there was a ban, limitation or restriction on the performance of building work imposed by a union , then the definition of "building industrial action" might be satisfied: see Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 (referred to below as "the No-case Ruling") at [59]. Also for the reasons previously given, I was satisfied that it was just and convenient for this ruling to be made without putting the Union and Mr Mates to their election. In the second limb of their no-case submission, the Union and Mr Mates contended that, taken at its highest from Mr Cahill's point of view, the evidence adduced by him did not make out the contraventions of ss 38 and 43 that he alleged in relation to the events of 21 and 22 February 2006 and following. For the reasons previously given, I declined to rule on this part of the no-case submission unless the Union and Mr Mates elected to call no further evidence: see the No-case Ruling at [30] and [60]. They were put to their election, and in respect of all causes of action. On 7 August 2008, the Union and Mr Mates elected not to call any evidence. At a directions hearing on 8 August 2008, I stated that I proposed to deliver my decision on the second part of the no-case submission at the same time as final judgment.
Case: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186
Outcome: cited
already noted, for relevant purposes, the Union was "an organisation". The term "building employee" is defined in s 4 to mean "a person whose employment consists of, or includes, building work; or ... a person who accepts an offer of engagement as an employee for work that consists of, or includes, building work". A reference to employees includes a reference to future employees: see Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186 at 193 [23] - [24] per Ryan, Lee and Branson JJ. The maximum pecuniary penalty that may be imposed on a body corporate by reason of s 49(2)(a) of the Act is 1,000 penalty units, while the maximum pecuniary penalty that may be imposed on an individual is 200 penalty units. This equates to $110,000 in the case of a body corporate and $22,000 in the case of an individual: see Crimes Act 1914 (Cth), s 4AA. Mr Cahill alleged that, on 15, 17, 21 and 22 February 2006 and following, the Union and/or Mr Mates contravened s 43 of the Building and Construction Industry Improvement Act . In particular, Mr Cahill alleged that, by their conduct on 15 and 17 February 2006, the Union and/or Mr Mates threatened to take action with the intent to coerce ACN 117 918 064 Pty Ltd trading as Hardcorp: (a) to employ at the Mount Street site the Union's former shop steward (Jason Deans), the former occupational health and safety officer (Roslyn Singleton), and the former FEDFA shop steward (Aengus O'Donnell); and (b) to allocate and/or designate to Ms Singleton the responsibilities or duties of the OH&amp;S officer at the Mount Street site.
Case: Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 1610 ; (2000) 108 FCR 52
Outcome: referred to
regard to the evidence and s 140 of the Evidence Act 1995 (Cth), I find that, at the meeting of 15 February 2006, Mr Mates made demands on Mr Goss that Mr Deans, Mr O'Donnell and Ms Singleton be re-employed at the Mount Street site, and that Mr Deans and Mr O'Donnell be appointed as shop stewards and Ms Singleton be appointed as OH&amp;S officer. All three individuals had previously been employed at the Mount Street site. Further, I find that Mr Mates threatened trouble at the site and that the project was "not going to happen" if his demands were not met. These threats constituted threatening to take action with intent to coerce Hardcorp to employ these three persons on the project at Mount Street and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&amp;S officer on the project as it recommenced. Mr Mates' intent to coerce for a prohibited reason has been established in the manner outlined in the previous decisions of the Court: see Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 1610 ; (2000) 108 FCR 52 at 61-2 [24] per Ryan J and National Tertiary Education Industry Union v Commonwealth [2002] FCA 441 ; (2002) 117 FCR 114 at 142-143 [102] per Weinberg J. Accordingly, having regard to the evidence of Mr Moresi, Mr Palmer, Mr McMahon and Mr Mitchell and s 140 of the Evidence Act , I find that, on the morning of 21 February 2006, Mr Mates demanded that the crane crew from Independent Cranes shut down the crane and leave the site, which they ultimately did after speaking to their own office. In so doing, Mr Mates was carrying out his threats of 15 and 17 February 2006. Having regard to this fact and to Mr Mates' statements to Mr Moresi, Mr Palmer and Mr McMahon on the morning of 21 February 2006, I find that his intention in shutting down the crane was to coerce Hardcorp to re-employ Mr Deans, Mr O'Donnell and Ms Singleton at the Mount Street site, and, amongst other things, to have Ms Singleton appointed as OH&amp;S officer on site: compare Telstra Corporation Ltd (2000) 108 FCR at 61 [24] and National Tertiary Education Industry Union (2002) 117 FCR at 142-143 [102]. For the reasons stated above, Mr Mates' conduct and intent are to be taken as that of the Union.
Case: National Tertiary Education Industry Union v Commonwealth [2002] FCA 441 ; (2002) 117 FCR 114
Outcome: referred to
regard to the evidence and s 140 of the Evidence Act 1995 (Cth), I find that, at the meeting of 15 February 2006, Mr Mates made demands on Mr Goss that Mr Deans, Mr O'Donnell and Ms Singleton be re-employed at the Mount Street site, and that Mr Deans and Mr O'Donnell be appointed as shop stewards and Ms Singleton be appointed as OH&amp;S officer. All three individuals had previously been employed at the Mount Street site. Further, I find that Mr Mates threatened trouble at the site and that the project was "not going to happen" if his demands were not met. These threats constituted threatening to take action with intent to coerce Hardcorp to employ these three persons on the project at Mount Street and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&amp;S officer on the project as it recommenced. Mr Mates' intent to coerce for a prohibited reason has been established in the manner outlined in the previous decisions of the Court: see Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 1610 ; (2000) 108 FCR 52 at 61-2 [24] per Ryan J and National Tertiary Education Industry Union v Commonwealth [2002] FCA 441 ; (2002) 117 FCR 114 at 142-143 [102] per Weinberg J. Accordingly, having regard to the evidence of Mr Moresi, Mr Palmer, Mr McMahon and Mr Mitchell and s 140 of the Evidence Act , I find that, on the morning of 21 February 2006, Mr Mates demanded that the crane crew from Independent Cranes shut down the crane and leave the site, which they ultimately did after speaking to their own office. In so doing, Mr Mates was carrying out his threats of 15 and 17 February 2006. Having regard to this fact and to Mr Mates' statements to Mr Moresi, Mr Palmer and Mr McMahon on the morning of 21 February 2006, I find that his intention in shutting down the crane was to coerce Hardcorp to re-employ Mr Deans, Mr O'Donnell and Ms Singleton at the Mount Street site, and, amongst other things, to have Ms Singleton appointed as OH&amp;S officer on site: compare Telstra Corporation Ltd (2000) 108 FCR at 61 [24] and National Tertiary Education Industry Union (2002) 117 FCR at 142-143 [102]. For the reasons stated above, Mr Mates' conduct and intent are to be taken as that of the Union.
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375
Outcome: cited
Union is and was a "building association" within the meaning of s 4 of the Building and Construction Industry Improvement Act . Pursuant to s 69(1)(b) , "the following conduct in relation to a building association is taken to be conduct of the building association ... conduct of an officer or agent of the association acting in that capacity". Mr Mates was an officer of the association (s 69(3)) and acted in that capacity. At trial, counsel for the Union and Mr Mates made no argument to the contrary: see also Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530 at [76] - [78] per Ryan, Moore and Goldberg JJ and Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [33] per Le Miere J. Mr Mates' conduct is therefore taken to be the conduct of the Union.
Case: James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347
Outcome: referred to
already noted, the contraventions alleged in respect of the events on site on 21 February 2006 and the picket line on 22 February 2006 and following were the subject of a no case submission. The question for the Court on a no case submission of the kind made is whether there is evidence upon which the Court could enter judgment for the applicant. Plainly enough, logically speaking, rejecting a no case submission does not necessarily entail the consequence that the claim succeeds. The difference between a ruling on a no case submission and final judgment is clear where a judge sits with a jury. Where a judge sits alone the distinction may be less easily seen. As Toohey J said in James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 400: Where a judge is sitting with a jury, the distinction between the arbiter of law and the arbiter of fact is of course apparent. If the judge decides that there is a case to go to the jury, it is then for the jury to uphold or dismiss the claim. While there is no logical inconsistency in rejecting a no case submission and thereafter rejecting the claim, the distinction is a fine one when a judge sits without a jury, given that the standard of proof is on the balance of probabilities and that inferences may be drawn by reason of the respondent's failure to adduce evidence. ... If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory ... The inconvenience of not putting the defendant to an election is apparent. If the judge's decision on the no case submission is upset on appeal, there must inevitably be a retrial.
Case: Residues Treatment &amp; Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54
Outcome: referred to
Residues Treatment &amp; Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 at 73-4, Perry J determined that the defendants should be put to their election and said: I realise that by putting the defendants to their election, I have effectively rendered it impracticable for the defendants to make any submission of no case to answer, even if they elect not to call any evidence. This is so, as if they do not call any evidence, it would not be appropriate for the court then to embark on the artificial exercise of determining whether there was a case to answer. The orderly disposal of the proceedings in those circumstances would require the defendants to proceed with their final submissions: see Toohey J, James v ANZ Bank at 400. But those considerations cannot deflect me from ruling in favour of the defendants being put to their election, if it is otherwise proper to do so. As noted above, this was also the view I came to and the course taken in this case. Accordingly, I turn to the evidence as it now stands. On 17 February 2006, Transit Joint Venture booked and paid for a crane crew and a crane from IC Hire Pty Ltd, trading as Independent Cranes, to attend the site on Tuesday, 21 February 2006. Monday, 20 February 2006, was a rostered day off for workers at the site. On 21 February 2006, Mr Mates attended Mount Street shortly after the crane and crane crew had come onto the site and begun to set up. The Union and Mr Mates did not dispute that Mr Mates told the crane crew to shut down the crane and leave. The crane crew spoke with Mr Mitchell at the office of Independent Cranes and left the site. Mr Cahill alleged that, by this conduct, the Union and Mr Mates contravened s 43 by taking action with the intent to coerce Hardcorp to employ Mr Deans, Ms Singleton and Mr O'Donnell; and/or (2) allocate and/or designate to Ms Singleton the duties or responsibilities of an OH&amp;S officer: see [13] and [19] of the Statement of Claim. There was a further related allegation concerning s 38 , which is discussed below.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
Mitchell was called by Mr Cahill to give evidence, but he gave no evidence that he had received a call from Mr Mates or any other Union representative that day or on any subsequent day. Indeed, Mr Mitchell was not asked whether Mr Mates or anyone else from the Union had telephoned him at Independent Cranes on 21 February 2006 or any other date. As counsel for the Union and Mr Mates said, it has to be borne in mind that, at this time, Mr Mitchell was in charge of bookings at Independent Cranes. If there had been a warning off as alleged, he might reasonably have been expected to know about it. Counsel for the Union and Mr Mates relied on the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Counsel argued that the inference that there was no warning off might, in the absence of testimony from Mr Mitchell, be more comfortably drawn. I accept this submission in part: see Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at 112 [159] - [160] and Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (2007) 241 ALR 705 at 758 [384] per Jacobson J. I accept that, in the absence of any testimony from Mr Mitchell on the subject, it may be more comfortably inferred that, leaving aside what had happened earlier on 21 February 2006, no-one from the Union directly or expressly warned off Independent Cranes.
Case: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68
Outcome: referred to
Mitchell was called by Mr Cahill to give evidence, but he gave no evidence that he had received a call from Mr Mates or any other Union representative that day or on any subsequent day. Indeed, Mr Mitchell was not asked whether Mr Mates or anyone else from the Union had telephoned him at Independent Cranes on 21 February 2006 or any other date. As counsel for the Union and Mr Mates said, it has to be borne in mind that, at this time, Mr Mitchell was in charge of bookings at Independent Cranes. If there had been a warning off as alleged, he might reasonably have been expected to know about it. Counsel for the Union and Mr Mates relied on the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Counsel argued that the inference that there was no warning off might, in the absence of testimony from Mr Mitchell, be more comfortably drawn. I accept this submission in part: see Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at 112 [159] - [160] and Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (2007) 241 ALR 705 at 758 [384] per Jacobson J. I accept that, in the absence of any testimony from Mr Mitchell on the subject, it may be more comfortably inferred that, leaving aside what had happened earlier on 21 February 2006, no-one from the Union directly or expressly warned off Independent Cranes.
Case: Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (2007) 241 ALR 705
Outcome: referred to
Mitchell was called by Mr Cahill to give evidence, but he gave no evidence that he had received a call from Mr Mates or any other Union representative that day or on any subsequent day. Indeed, Mr Mitchell was not asked whether Mr Mates or anyone else from the Union had telephoned him at Independent Cranes on 21 February 2006 or any other date. As counsel for the Union and Mr Mates said, it has to be borne in mind that, at this time, Mr Mitchell was in charge of bookings at Independent Cranes. If there had been a warning off as alleged, he might reasonably have been expected to know about it. Counsel for the Union and Mr Mates relied on the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Counsel argued that the inference that there was no warning off might, in the absence of testimony from Mr Mitchell, be more comfortably drawn. I accept this submission in part: see Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at 112 [159] - [160] and Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (2007) 241 ALR 705 at 758 [384] per Jacobson J. I accept that, in the absence of any testimony from Mr Mitchell on the subject, it may be more comfortably inferred that, leaving aside what had happened earlier on 21 February 2006, no-one from the Union directly or expressly warned off Independent Cranes.
Case: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449
Outcome: cited
summary, having regard to s 140 of the Evidence Act and the evidence before me, I reject as unproven Mr Cahill's further allegations that: (1) Mr Mates telephoned the Union's offices or a representative of the Union to instruct Mr Hill to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (2) Mr Mates arranged for Mr Tadic and/or Mr Hill to contact Independent Cranes to ensure that the crane left the Mount Street site and did not return. See generally Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Granada Tavern v Smith (2008) 173 IR 328, [2008] FCA 646 at [85] and following.
Case: Granada Tavern v Smith (2008) 173 IR 328, [2008] FCA 646
Outcome: cited
summary, having regard to s 140 of the Evidence Act and the evidence before me, I reject as unproven Mr Cahill's further allegations that: (1) Mr Mates telephoned the Union's offices or a representative of the Union to instruct Mr Hill to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (2) Mr Mates arranged for Mr Tadic and/or Mr Hill to contact Independent Cranes to ensure that the crane left the Mount Street site and did not return. See generally Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Granada Tavern v Smith (2008) 173 IR 328, [2008] FCA 646 at [85] and following.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321
Outcome: cited
was evidence from Mr Goss that he telephoned Mark Lunedei of MC Labour to ask him why his people were there. Mr Lunedei did not give evidence at trial. Counsel for Mr Cahill argued that Mr Goss's evidence as to what Mr Lunedei said to him was admissible pursuant to s 87(1)(c) of the Evidence Act . I doubt that this was so: see Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at 339-340 [53]-[54] and Orica Investments Pty Ltd v William McCartney [2007] NSWSC 645 at [53] . Even if it were admissible, however, I would not accord the evidence any weight, having regard to the fact that I considered Mr Goss exaggerated his evidence from time to time to implicate the Union and Mr Mates.
Case: Orica Investments Pty Ltd v William McCartney [2007] NSWSC 645
Outcome: cited
was evidence from Mr Goss that he telephoned Mark Lunedei of MC Labour to ask him why his people were there. Mr Lunedei did not give evidence at trial. Counsel for Mr Cahill argued that Mr Goss's evidence as to what Mr Lunedei said to him was admissible pursuant to s 87(1)(c) of the Evidence Act . I doubt that this was so: see Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at 339-340 [53]-[54] and Orica Investments Pty Ltd v William McCartney [2007] NSWSC 645 at [53] . Even if it were admissible, however, I would not accord the evidence any weight, having regard to the fact that I considered Mr Goss exaggerated his evidence from time to time to implicate the Union and Mr Mates.
Case: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Outcome: cited
was ample evidence that the picket was directed to recovering payments for sub-contractors and others to whom the Goss companies owed money. The picket followed immediately after the second creditors' meeting of Melbourne Transit (at which 2.4 cents in the dollar was offered to unsecured creditors). As noted above, on 23 February 2006, Mr Palmer observed that the picketers had handwritten signs that referred to "Goss needing to pay his debts". The picket line included creditors of Melbourne Transit. For reasons already indicated, I would accord little weight to Mr McMahon's uncorroborated evidence that he recognized only a "small percentage" on the picket line as subcontractors. The video evidence of the picket on 24 February 2006 showed that the then picketers were concerned with the repayment of debts. The evidence establishes that, on the balance of probabilities, the reason for the picket line was to pressure Mr Goss to make a better offer for the payment of debts than that made at the creditor's meeting on 21 February 2006. Apart from the fact that Mr Mates had stopped the crane the day before, there would have been very little reason for supposing that the picket was being organised so as to coerce Hardcorp to re-employ anyone or to allocate OH&amp;S responsibilities to any particular individual. I do not consider that the reason for stopping the crane can, without more, be treated as the reason for the picket, especially when the creditors' meeting had intervened and there was evidence to the contrary. Mr Cahill has therefore failed to establish that the reason proscribed in s 43 was a substantial or operative reason (or a substantial and operative reason) for the organising of the picket: see Hanley 100 FCR at 541 [44]-[45] and National Tertiary Education Union 117 FCR at 139 [98]; and compare General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 per Mason J.