Case: A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 ; (2007) 165 IR 94
Outcome: related
On 13 July 2007 I delivered judgment on liability ( A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 ; (2007) 165 IR 94) . The findings can be summarised as follows: (1) Lane, CFMEU and CFMEU NSW contravened s 170NC of the Workplace Relations Act 1996 (Cth) (Pre-Reform). It is now common ground that no case of such breach was pleaded against CFMEU NSW. (2) Lane, Primmer, Kelly, CFMEU and CFMEU NSW contravened s 45D of the Trade Practices Act 1974 (Cth). (3) Lane, Primmer, Kelly, CFMEU and CFMEU NSW interfered with the contract between LGB and Silvestri P/L. 2 Damages for breach of s 45D of the Trade Practices Act 1974 (Cth) and interfering with the contract and penalties for breach of s 170NC must now be determined. It is not necessary to repeat the factual background to the proceeding, save for where it is relevant to the consideration of remedies. Phrases and terms used in these reasons (if otherwise undefined or unexplained) are to be understood by reference to the judgment on liability. 3 The respondents contend that the contract between LGB and Silvestri P/L was an hourly hire and that damages should not exceed compensation for more than two hours' work. I disagree. Both parties to the contract understood that the job entailed all of the excavation required at the site. I so held in the judgment on liability ( A &amp; L Silvestri Pty Ltd [2007] FCA 1047 ; (2007) 165 IR 94 at [83] ). The benefit of that arrangement was denied by reason of the wrongful actions of the respondents. 4 Silvestri P/L's primary claim is for damages based upon the time that was taken to complete the job by other contractors many months, with more than one machine operating at times. I do not accept that approach. The question is the time that Silvestri P/L would have taken. Both Antonio Silvestri and Krkovski estimated that the job would take three to four weeks. There was evidence of inefficiency on the part of successive excavation contractors in completing the job and there was a holiday period. Nonetheless, the time actually taken does indicate that the parties were over-optimistic in the estimate of three to four weeks. Any such estimate would necessarily depend upon the nature of the material encountered, weather and other factors. I will take eight weeks working at the rate of five days and 40 hours per week as to length of the job. I allow $105 per hour to take account of excavator and hammer hire as well as excavator hire, leading to a loss of revenue of $33,600 less variable costs of $100 per day for fuel and oil totalling $4,000 leaving a net loss of revenue of $29,600. During the eight week period from 22 October 2003, Silvestri P/L earned $6,687 for excavator, mini excavator and mini excavator float hire. The amount lost is therefore near enough to $23,000 plus interest from 22 October 2003 to the date of judgment. I cannot see that there is any practical difference as to calculation of damages between the count in tort and the count based upon s 45D. 5 A preliminary question arises as to the number of contraventions committed. The applicants submit that each of the "explicit threats" by Lane constituted a separate breach of s 170NC by both Lane and the CFMEU and therefore each can and should be the subject of a separate penalty. They seek declarations for, in effect, six contraventions, each relating to an identified event. The respondents submit that the application and the amended statement of claim allege only one contravention of s 170NC and seek only the imposition of one penalty in respect of the conduct pleaded. In the alternative, the respondents contend that, if there are separate contraventions by Lane (and through him the CFMEU), then they were part of a single course of conduct to which the totality principle would apply, as in imposing a penalty for a number of offences it is necessary to ensure that the penalties in aggregate are just and appropriate. I accept that only one contravention evidenced by a series of actions is alleged on the pleadings and will proceed accordingly.