Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 01 April 2021
• Neutral Citation: [2021] FCA 348
• Court: Federal Court
• Date: 01 April 2021

Federal Court of Australia

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348

File numbers:	NSD 596 of 2017 NSD 1594 of 2017
Judgment of:	LEE J
Date of judgment:	1 April 2021
Catchwords:	INDUSTRIAL LAW – claimed statutory compensation pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth) – principles to be applied – factual and legal causation – statutory causation generally ; PRACTICE AND PROCEDURE – reference as to factual causation and quantification of statutory compensation following finding of contravening conduct – referee report – nature of references – principles to be applied in determining whether to adopt or reject referee report – referee report rejected – erroneous application of principles of factual causation
Legislation:	Acts Interpretation Act 1901 (Cth) s 33 Australian Consumer Law ss 236, 237, 238 Australian Securities and Investments Commission Act 2001 (Cth) s 12GBB Fair Work Act 2009 (Cth) ss 346, 545, 570 Federal Court of Australia Act 1976 (Cth) s 54A Trade Practices Act 1974 (Cth) ss 82, 87 Workplace Relations Act 1996 (Cth) s 494 Federal Court Rules 2011 (Cth) rr 28.66, 28.67
Cases cited:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 Barnes v Hay (1988) 12 NSWLR 337 Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112; (2018) 268 FCR 590 Dalfallah v Fair Work Commission [2014] FCA 328; (2014) 225 FCR 559 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 I & L Securities Pty Limited v HTW Valuers [2002] HCA 41; (2002) 210 CLR 109 Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1093 Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451; (2019) 286 IR 52 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Qantas Airways Ltd v Transport Workers’ Union of Australia (No 2) [2011] FCA 816; (2011) 211 IR 119 Transport Workers Union of Australia v Qantas Airways Ltd [2012] FCAFC 10; (2012) 199 FCR 190 Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627
Division:	General Division
Registry:	New South Wales
National Practice Area:	Employment & Industrial Relations
Number of paragraphs:	60
Date of hearing:	1 April 2021
Counsel for the Applicants in NSD 596 of 2017:	Mr J Fernon SC with Ms V Bulut
Counsel for the Applicants in NSD 1594 of 2017:	Mr J Darams
Solicitor for the Applicants in NSD 596 of 2017 and NSD 1594 of 2017:	Seyfarth Shaw Australia
Counsel for the Respondents in NSD 596 of 2017 and NSD 1594 of 2017:	Mr R Reitano
Solicitor for the Respondents in NSD 596 of 2017 and NSD 1594 of 2017:	Slater & Gordon Lawyers

ORDERS

		NSD 596 of 2017
BETWEEN:	PATRICK STEVEDORES HOLDINGS PTY LIMITED ABN 63 060 462 919 First Applicant ; PATRICK STEVEDORES OPERATIONS PTY LTD Second Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MR PAUL MCALEER Second Respondent ; MR PAUL KEATING Third Respondent

order made by:	LEE J
DATE OF ORDER:	1 april 2021

THE COURT ORDERS THAT:

1. Pursuant to s 54A(3)(c) of the Federal Court of Australia Act 1976 (Cth), the Referee Report be rejected.

2. Subject to further order, all of the parties involved in the Reference, that is, Patricks, Qube and the respondent parties, each pay one-third of the costs of the Reference, which is to be one-half of the amount invoiced by the Referee.

3. Payment in accordance with Order 2 is to occur within 28 days of the date of these orders.

4. The Referee has leave to apply for a variation of Order 2.

5. The proceedings be set down for a final hearing commencing at 10.15am on 30 August 2021.

6. The proceedings be listed for a case management hearing at 9.30am on 20 April 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		NSD 1594 of 2017
BETWEEN:	QUBE LOGISTICS (NSW) PTY LTD ACN 123 022 588 First Applicant ; QUBE LOGISTICS (SB) PTY LTD ACN 003 307 310 Second Applicant ; QUBE LOGISTICS (RAIL) PTY LTD ACN 082 313 415 Third Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MR PAUL MCALEER Second Respondent ; MR PAUL KEATING Third Respondent

order made by:	LEE J
DATE OF ORDER:	1 april 2021

THE COURT ORDERS THAT:

1. Pursuant to s 54A(3)(c) of the Federal Court of Australia Act 1976 (Cth), the Referee Report be rejected.

2. Subject to further order, all of the parties involved in the Reference, that is, Patricks, Qube and the respondent parties, each pay one-third of the costs of the Reference, which is to be one-half of the amount invoiced by the Referee.

3. Payment in accordance with Order 2 is to occur within 28 days of the date of these orders.

4. The Referee has leave to apply for a variation of Order 2.

5. The proceedings be set down for a final hearing commencing at 10.15am on 30 August 2021.

6. The proceedings be listed for a case management hearing at 9.30am on 20 April 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

LEE J:

a INTRODUCTION AND BACKGROUND

1. This is the third decision in the present proceedings.

2. The relevant facts are set out comprehensively in Patrick Stevedores Holdings Pty Ltd v Construction,...