Case: Hadgkiss v Aldin [2007] FCA 2068
Outcome: referred to
I have earlier delivered judgment in relation to all of the other respondents in these proceedings: Hadgkiss v Aldin [2007] FCA 2068. The reasons for judgment here should be read together with those other reasons for judgment, which provide the relevant background, both factually and legally, to the disposition of the two motions before the Court. 2 The Notices of Motion seek orders pursuant to Order 35A of the Federal Court Rules . The Notices of Motion are in respect of Robert Peter Alivojvodic, Bruce James Allsopp, Brett Harold Andrews and Alex Ian Cromb, respectively the second, third, eighty-third and ninety-second respondents ("the defaulters"). I have had the benefit of very detailed and helpful written submissions from which I have drawn, in compiling these reasons. 3 Orders of the following kind are sought against the defaulters: (a) a declaration that each of the four defaulters engaged in unlawful industrial action in contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) during the period 24 February 2006 to 3 March 2006 inclusive (the Period); (b) an order imposing a pecuniary penalty on each of the four defaulters pursuant to s 49(1)(a) of the BCII Act for engaging in unlawful industrial action during the Period; (c) an order suspending part of the pecuniary penalty in each case pursuant to the general power under s49(1)(c) of the BCII Act; (d) an order pursuant to s 49(5) of the BCII Act that the pecuniary penalties imposed be paid to the Commonwealth; and in respect of each of the second and third respondents: (e) a declaration that each of the second and third respondents breached the order made by the Australian Industrial Relations Commission on 6 December 2005 known as the New Metro Rail City Project Leighton Kumagai Joint Venture Industrial Action Order December 2005 (s 127 Order) by engaging in industrial action during the Period (f) an order imposing pecuniary penalties on the second and third respondents under s 178 of the WR Act for breach of the s 127 Order during the Period; (g) an order pursuant to s 356 of the WR Act that the penalty imposed on the second and third respondents be paid to the Commonwealth; and in respect of each of the four defaulters: (h) an order that each of the respondents pay the applicant's costs in the sum of $5,000, in respect of costs of the Notice of Motion for default judgment against each of them. 19 I have in these proceedings previously made declarations in relation to the other respondents by reference to Statements of Agreed Facts: Hadgkiss v Aldin [2007] FCA 2068. 20 The defaulters are deemed to have made admissions of the facts pleaded in the Statement of Claim. Declaratory relief as against the defaulters in those circumstances is not materially different to the position of the other respondents who are signatories to the Statements of Agreed Facts. 24 I propose that, for the same reasons, the same penalties be imposed on each of the defaulters, as was imposed in relation to the main body of respondents identified in Schedule 2 to my earlier reasons: Hadgkiss v Aldin [2007] FCA 2068. 25 Accordingly I will impose the following penalties: (a) in respect of each of the defaulters, for the deemed admitted contraventions of s 38 of the BCII Act, a penalty of $9,000 of which $3,000 should be payable within 45 days and the balance of $6,000 suspended for six months, to be paid only if the respondent further contravenes the BCII Act or the WR Act during the period of the suspension; and (b) in respect of the second and third respondents for the further deemed admitted breaches of the s 127 order, an additional penalty of $1000 of which $250 should be payable within 45 days and the balance of $750 suspended for six months, upon similar terms. 26 Costs ought follow the event. Although the WR Act is a no costs jurisdiction, there is no such provision in the BCII Act. Agreement was reached with the primary group of respondents who admitted contraventions that there would be no order as to costs. No such agreement has been reached with these respondents. The defaulters have failed to either file an appearance or a defence in the proceedings and the applicant has incurred additional legal costs as a result.