Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 Citation: United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408
Parties: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201, AGC INDUSTRIES PTY LTD ABN 57 079 939 898, MODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590, DOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700, MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836, CBI CONSTRUCTORS PTY LTD ABN 90 000 612 411, DECMIL AUSTRALIA PTY LTD ABN 58 116 776 991, FREO GROUP LIMITED ABN 64 009 325 124, MAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644, PCH GROUP LTD ABN 41 009 120 021, RCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814, RCR POSITRON PTY LTD ABN 38 106 084 879 and JOHN HOLLAND PTY LTD ABN 11 004 282 268 v BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED and THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
File number: WAD 14 of 2010
Judge: MCKERRACHER J
Date of judgment: 8 December 2011
Corrigendum: 16 December 2011
Catchwords: INDUSTRIAL LAW – unlawful industrial action by more than 1300 respondents - some represented - some not – breach of Fair Work Act 2009 (Cth) (FW Act) and Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) – purpose of industrial action – motivation of respondents – industrial motivation – liability – liability admitted by represented respondents – agreement on remedy and penalty – appropriate penalty to be determined by the Court – whether it is appropriate to make declarations – analysis of transitional provisions of the FW Act – differences between an agreement-based transitional instructions, Workplace Relations Act instruments and transitional instruments – meaning of industrially-motivated in the BCII Act – definition of 'industrially-motivated' in the BCII Act – operation and construction of para (a) of the definition of 'industrially-motivated' in the BCII Act – operation and construction of para (d) of the definition of 'industrially-motivated' in the BCII Act – meaning of motivation – disruption to the performance of work for the purpose of industrial action PRACTICE AND PROCEDURE – respondents who have not entered an appearance – former Federal Court Rules O 32 r 2(1)(d) – Court required to consider merits of case and make determination on balance of probabilities – Court entitled to assume correctness of matters upon which the applicant bears the onus – Federal Court Rules 2011 r 1.04 – whether proof of service on absent respondents required before affidavits can be read – where service was not effected personally – leave required to read affidavits without service – where respondents had notice of proceedings and consequences EVIDENCE - reliance on inference – proof of any fact on the balance of probabilities from which the Court infers a further fact – inferences from primary or intermediate fact – circumstances to be taken into account when drawing an inference – failure to deny or explain facts – admissions made by agents of the unrepresented respondents – establishing liability against unrepresented respondents – unrepresented respondents aware of proceeding and consequences - liability established
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