Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17

INDUSTRIAL LAW – findings of contraventions of Workplace Relations Act 1996 (Cth) – power of the Court to make orders under s 298U – whether orders made applied in respect of conduct in contravention of Part XA – whether s 23 of the Federal Court of Australia Act 1976 (Cth) is an additional source of power – primary judge made orders for union to destroy all Code of Conduct for Union Delegate forms in its custody, possession or control – orders made for union to publish advertisement correcting misrepresentations made by union delegates – penalties imposed INDUSTRIAL LAW – mandatory injunctions – destruction orders – whether procedural fairness afforded to appellants – whether orders were too wide to be capable of compliance – whether injunction could be amended to clarify purpose – whether orders necessary to do justice between parties – whether mandatory injunctions protect any right or restrain any unlawful conduct – whether factual foundation for the grant of injunction existed INDUSTRIAL LAW – publication orders – whether any utility in making orders – orders stayed until hearing of appeal – three years since orders made by primary judge – whether orders have any practical effect

INDUSTRIAL LAW – penalties imposed on union delegates – whether primary judge had failed to take account of third appellant's history of non-contravention – whether primary judge had miscarried in exercise of discretion – whether issue of parity arises in relation to difference in penalties Held: appeal allowed in part – destruction orders and publication orders set aside PRACTICE AND PROCEDURE – leave to cross-appeal – whether extension of time should be granted – no explanation of delay – whether cross-appeal incompetent – no direct challenge to orders of primary judge